(SS) Vera v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARINA A. VERA, Case No. 1:20-cv-01489-DAD-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. REGARDING PLAINTIFF’S SOCIAL SECURITY COMPLAINT 14 KILOLO KIJAKAZI, Acting Commissioner 15 of Social Security,1 (Docs. 18, 19) 16 Defendant. FOURTEEN-DAY DEADLINE 17 18

19 Findings and Recommendations 20 INTRODUCTION 21 Plaintiff Marina A. Vera (“Plaintiff”) seeks judicial review of a final decision of the 22 Commissioner of Social Security (“Commissioner”) denying her application for disability insurance 23 benefits under Title II of the Social Security Act. The matter is currently before the Court on the 24 parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. 25 McAuliffe for findings and recommendations. 26

27 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted for Andrew Saul as the defendant 28 in this suit. 1 Having considered the parties’ briefs, along with the entire record in this case, the Court finds 2 that the decision of the Administrative Law Judge (“ALJ”) is supported by substantial evidence in the 3 record and is based upon proper legal standards. Accordingly, this Court will recommend affirming 4 the agency’s determination to deny benefits. 5 FACTS AND PRIOR PROCEEDINGS 6 Plaintiff filed an application for disability insurance benefits on May 15, 2019. AR 202-05.2 7 Plaintiff alleged that she became disabled on January 5, 2017, due to ruptured disk lower back, mid- 8 back herniated disk, neck herniated disk, slow on responding, left leg numbness, tingling all the way to 9 bottom of foot, and surgery recommended. AR 15, 202, 228. Plaintiff’s application was denied 10 initially and on reconsideration. AR 115-18, 124-28. Subsequently, Plaintiff requested a hearing 11 before an ALJ. ALJ William Reamon held a hearing on May 21, 2020. AR 37-90. ALJ Reamon 12 issued an order denying benefits on June 24, 2020. AR 12-32. Plaintiff sought review of the ALJ’s 13 decision, which the Appeals Council denied, making the ALJ’s decision the Commissioner’s final 14 decision. AR 1-5. This appeal followed. 15 Hearing Testimony 16 The ALJ held a telephonic hearing on May 21, 2020. Plaintiff appeared with her attorney, 17 Zachery Ishikawa. Robin Cook, an impartial vocational expert, also appeared and testified. AR 39. 18 In response to questions from the ALJ, Plaintiff testified that she has a high school diploma, 19 along with some college units. She can read and write in English. She can also do math. AR 48. 20 The vocational expert (“VE”) asked clarifying questions regarding Plaintiff’s past work. AR 21 49. Plaintiff testified that in her job as cash clerk, or cash applications clerk, she was on her feet most 22 of the day and she was sitting, standing, and walking. AR 49-50. In her job doing benefits processing, 23 Plaintiff was on her feet for most of the day. It was the same for her patient registration job, and she 24 was constantly up and down. AR 50. The VE classified Plaintiff’s past work as cash accounting 25 clerk, benefits clerk, and patient registration clerk. AR 50-51. 26 27

28 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 In response to questions from her attorney, Plaintiff confirmed that she has problems with her 2 neck, thoracic spine (middle back) and her lumbar spine. Her symptoms from these conditions include 3 pain radiating down her legs, in her buttocks. She always has pain, which is increases with standing, 4 walking, or sitting. AR 51-52. Plaintiff testified that she cannot stand for long. She constantly has to 5 alternate between sitting, standing and lying down. AR 52-53. When she stands, she will get 6 numbness and tingling in her legs within a few minutes and her feet are cold from the numbness. She 7 has the same pain when sitting, feeling cramping on her lower back and numbness down her legs. 8 Sitting becomes unbearable within minutes. It is hard for her to get up when her toes, feet and legs are 9 numb and tingling. She also starts to feel nauseous from the pain. She has the same problems with 10 walking as she does with standing. During the day, she is mostly lying down. AR 53-55. 11 When asked about a normal day, Plaintiff testified that she wakes up at 4:00 a.m., but there is 12 no sleeping at night. She is constantly up because it is hard to position herself while lying in bed. 13 After she wakes up, she will walk to the kitchen, drink some water, take her medications, and then lie 14 back down. For the rest of the day, she will wash the dishes in pieces, do a little bit and then go lie 15 down. Plaintiff testified that her daughter helps with the chores. Plaintiff does not even put laundry 16 into the washing machine or pull stuff out of the dryer. AR 55-56. Her daughter drives her to the 17 market, helps push the basket, and carries the bags. AR 57. Plaintiff can carry less than five pounds. 18 AR 57-58. She can drive, but it is hard for her to turn her neck and it feels like she has 60-pounds 19 weights on the bottom of her legs pulling her down. AR 58-59. 20 Plaintiff confirmed that Dr. Timothy Watson recommended lumbar and cervical spine surgery. 21 Plaintiff did not get the surgery because they were pushing her to go back to work. At work, they gave 22 her a new job to accommodate her, and she was able to keep that job for five months. She sat eight 23 hours a day, but she could get up and walk if she had complications. However, she was not sleeping at 24 night, taking four or five hot baths to soothe her body to get through the next day. She called in sick a 25 few times. She cannot take pain medications, she gets nauseous, and her heart starts beating fast. 26 Ibuprofen caused her high blood pressure to spike. AR 59-62. 27 28 1 Plaintiff also testified that she is dealing with migraines as a result of her neck and back 2 impairments. She has migraines two or three times a week, which last one or two days. When she has 3 a migraine, she is not able to concentrate, and she cannot look at light. AR 64. 4 In response to questions from the ALJ, Plaintiff testified that for the four hours between 8:00 5 a.m. and 12:00 p.m., she will lie down about three and a half hours. For the time between 12:00 p.m. 6 and 5:00 p.m., she is only up for about half an hour of that period. The doctor in Bakersfield did not 7 want her to exert herself. When Plaintiff asked if she could go to the chiropractor or physical therapy, 8 the doctor told her that he did not want anybody touching her or manipulating her body. Plaintiff did 9 not return to this doctor after the initial visit because he was in Bakersfield. She did not see another 10 spinal care specialist after that. AR 66-68. 11 Plaintiff confirmed that her state disability payments stopped in March 2019 because they said 12 she was no longer disabled. Plaintiff was told that maybe they did not get all of her records, like the 13 specialist report saying she needed surgery. The payments never recommenced. In the fourteen 14 months after the payments stopped, she applied for work and did a phone interview to return to a job 15 like the one she had before, posting payments. She never heard back. She has not looked for work 16 since the interview. AR 70-73. Plaintiff did not think she could perform the jobs she applied for after 17 her onset date. AR 80. 18 Plaintiff also confirmed that she received a settlement from her car accident. She had an 19 attorney and she received $60,000 in settlement. She did not receive any payments for wage loss, but 20 $9,000 of her medical bills were paid. She never talked to any insurance company about covering her 21 back surgery. Although the doctor said Plaintiff did not seem to be very interested in having surgery, 22 Plaintiff testified that she was in shock, not that she was not interested. She did not go back to see him 23 after he suggested surgery. She has not seen anybody else for a consultation. She went back to see 24 Pamela Hernandez, the physician’s assistant that sees her for everything. Ms. Hernandez cannot do 25 anything for Plaintiff’s back problems, but she has been giving Plaintiff Flexeril. Plaintiff takes the 26 Flexeril at night, but it is not really of any use to her. She does not take any other pain medication. 27 Ms. Hernandez also raised Plaintiff’s high blood pressure medication because of dizziness. Plaintiff 28 has not been given anything specifically for dizziness. AR 73-79. 1 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. The ALJ asked the 2 VE to consider certain limitations. First, the ALJ asked the VE to consider limitations of 20 pounds 3 occasional lifting and carrying, 10 pounds frequently, standing and/or walking for about six hours of 4 an eight-hour day, seated activities for about six hours of an eight-hour day, no ladder, rope, or 5 scaffold climbing allowed, but occasional ramp or stair climbing, occasional balancing, stooping, 6 kneeling, crouching, and crawling, avoiding concentrated exposure to such things as fumes, odors, 7 dust, gases, and poor ventilation, and avoiding concentrated exposure to hazards, such as the operation 8 of dangerous moving machinery or exposure to unprotected heights. The VE testified that with those 9 light restrictions, all of Plaintiff’s past jobs would fit the hypothetical. AR 82-83. If Plaintiff was 10 relegated to lying down for all but about one hour of the time between 8:00 a.m. and 5:00 p.m., it 11 would create too much time off-task for somebody to do even the sedentary jobs that Plaintiff had 12 done in the past. The VE confirmed that no job would allow someone to lie down for seven out of 13 eight hours of the workday. AR 83. The VE also confirmed that Plaintiff’s past work would not 14 involve any hazards. AR 84. 15 Based on her experience in private practice, the VE also testified that if a person missed two or 16 more days per month, it would be work preclusive. Also, if a person is off task in excess of 10 percent 17 of the workday on a regular basis, it would be work preclusive. AR 84-85. 18 Following the ALJ’s questions, Plaintiff’s counsel asked the VE additional hypothetical 19 questions. Counsel asked the VE to assume the first hypothetical and add that this person would have 20 to alternate between sit and stand six minutes every hour. The VE testified that there would not be an 21 issue with the past sedentary positions as generally performed. AR 85-87. If the hypothetical added 22 that the individual was limited to less than occasional repetitive neck movements, the VE testified that 23 the individual could perform Plaintiff’s past relevant work. The VE clarified that there would not be 24 repetitive neck movements in the past relevant work. AR 88. 25 Medical Record 26 The relevant medical record was reviewed by the Court and will be referenced below as 27 necessary to this Court’s decision. 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 15-32. Specifically, the 4 ALJ found that Plaintiff had not engaged in substantial gainful activity since January 5, 2017, her 5 alleged onset date. AR 18. The ALJ identified the following severe impairments: lumbar 6 degenerative disc disease with disc herniation at the L4-:5 level; degenerative disc disease of the 7 cervical spine with multilevel disc herniations, thecal sac narrowing, facet arthropathy, and foraminal 8 narrowing; and asthma. AR 18-20. The ALJ determined that Plaintiff did not have an impairment or 9 combination of impairments that met or medically equaled any of the listed impairments. AR 20-21. 10 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 11 functional capacity (“RFC”) to perform light work, except she was limited to 20 pounds occasionally 12 of lifting and carrying, 10 pounds of frequent lifting and carrying; standing and/or walking for about 6 13 hours of an 8-hour day; seated activities for about 6 hours of an 8-hour day; no ladder, rope, or 14 scaffold climbing allowed; occasional ramp or stair climbing would be permitted as would occasional 15 balancing, stooping, kneeling, crouching, and crawling; avoid concentrated exposure to fumes, odors, 16 dusts, gases, and poor ventilation; and avoid concentrated exposure to hazards such as the operation of 17 dangerous moving machinery or exposure to unprotected heights. AR 21-31. With this RFC, the ALJ 18 found that Plaintiff could perform her past relevant work as a cash accounting clerk, a benefits clerk, 19 and a patient registration clerk. AR 31. The ALJ therefore concluded that Plaintiff was not disabled. 20 AR 31-32. 21 SCOPE OF REVIEW 22 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 23 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 24 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 25 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 26 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 27 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 28 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 1 considered, weighing both the evidence that supports and the evidence that detracts from the 2 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 3 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 4 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 5 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 6 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 7 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 8 REVIEW 9 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which has 11 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 12 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 13 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 14 her age, education, and work experience, engage in any other kind of substantial gainful work which 15 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 16 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 17 1990). 18 DISCUSSION3 19 Plaintiff contends that the ALJ erred by rejecting the opinions of PA Pamela Hernandez and 20 Dr. Augustin Rubio and by failing to offer legitimate reasons for rejecting Plaintiff’s subjective 21 complaints. (Doc. 18 at 1.) 22 A. Medical Opinion Evidence 23 Plaintiff first contends that the ALJ erred by rejecting the opinion evidence from Dr. Rubio and 24 PA Hernandez without setting forth specific, legitimate reasons for doing so. (Doc. 18 at 8.) 25 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 Because Plaintiff applied for benefits after March 27, 2017, her claim is governed by the 2 agency’s new regulations concerning how an ALJ must evaluate medical opinions. 20 C.F.R. § 3 404.1520c Under the new regulations, the Commissioner does “not defer or give any specific 4 evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative 5 medical finding(s), including those from [a claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a)(1). 6 The Commissioner evaluates the persuasiveness of the medical opinions based on the following 7 factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and 8 (5) other factors, such as “evidence showing a medical source has familiarity with the other evidence 9 in the claim or an understanding of our disability program’s policies and evidentiary requirements.” 10 20 C.F.R. § 404.1520c(c)(3)(1)-(5). Supportability and consistency are the most important factors. 20 11 C.F.R. § 404.1520c(b)(2). 12 Ninth Circuit case law preceding the new regulations afforded deference to the medical 13 opinions of treating and examining physicians. Indeed, prior to the current regulations, the Ninth 14 Circuit required ALJs to provide clear and convincing or specific and legitimate reasons for rejecting 15 the medical opinions of treating or examining physicians. Contrary to Plaintiff’s suggestion, these 16 standards of articulation no longer apply in light of the new regulations, and the ALJ was not required 17 to provide “specific and legitimate reasons” to discount the medical opinions. See Woods v. Kijakazi, 18 32 F.4th 785, 792 (9th Cir. 2022) (finding revised social security regulations “clearly irreconcilable 19 with our caselaw according special deference to the opinions of treating and examining physicians on 20 account of their relationship with the claimant”). However, the Ninth Circuit has clarified that “under 21 the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or 22 inconsistent without providing an explanation supported by substantial evidence.” Id. “The agency 23 must ‘articulate ... how persuasive’ it finds ‘all of the medical opinions’ from each doctor or other 24 source, . . . and ‘explain how [it] considered the supportability and consistency factors’ in reaching 25 these findings.” Id. (internal citations omitted); see 20 C.F.R. § 404.1520c(b). 26 Opinion of PA Hernandez and Dr. Rubio 27 On June 9, 2020, PA Hernandez and Dr. Rubio completed a Physical Residual Function 28 Capacity Medical Source Statement form. AR 435-38. They identified Plaintiff’s diagnosis as lumbar 1 disc herniation with symptoms including constant pain and nausea due to intense pain. Plaintiff was 2 noted to be taking Flexeril at bedtime, which caused drowsiness. AR 435. PA Hernandez and Dr. 3 Rubio opined that Plaintiff could frequently lift or carry less than 5 pounds, occasionally lift 5 pounds, 4 rarely lift 10 pounds, and never lift 15 or 20 pounds. AR 435-36. She could not walk one city block 5 without rest or severe pain and could not climb steps without the use of a handrail at a reasonable 6 pace. She had problems with balance when ambulating and problems with stooping, crouching and 7 bending. PA Hernandez and Dr. Rubio opined that Plaintiff must lie down/recline for 3 hours because 8 of pain. In an 8-hour workday, Plaintiff would need to lie down and/or recline for about 4 hours. She 9 could sit less than one hour in an 8-hour workday and stand and walk less than one hour in an 8-hour 10 workday. AR 436. She would need to take unscheduled breaks daily for 30 minutes and would need 11 to lie down/sit quietly during those breaks. Plaintiff must use an assistive device for prolonged 12 ambulation and Plaintiff was noted to use a grocery cart at the store. AR 436-37. In an 8-hour 13 workday, Plaintiff could grasp, turn and twist objects with her right hand 80% of the time and 30% of 14 the time with her left hand. She could use her fingers on the right hand for fine manipulations 80% of 15 the time and 30% of the time with her fingers on the left hand. She could reach overhead with her 16 right arm 5-10% of the time and 5-10% of the time with her left arm. Plaintiff did not have the ability 17 to climb ladders, scaffolds, ropes or ramps, but she could climb stairs slowly holding onto railings. 18 AR 437. 19 PA Hernandez and Dr. Rubio also opined that Plaintiff’s depression and anxiety contributed to 20 Plaintiff’s physical condition or functional limitations. She would frequently experience pain severe 21 enough to interfere with attention and concentration needed to perform simple work tasks and would 22 frequently experience stress severe enough to interfere with attention and concentration needed to 23 perform simple work tasks. AR 437. PA Hernandez and Dr. Rubio indicated that Plaintiff had a 24 slower ability to comprehend something read or while reading. AR 438. They opined that Plaintiff 25 would be off task 25% of an 8-hour workday and, on average, would be absent from work 4 days per 26 month. She also would be unable to complete an 8-hour workday 4 days per month. Plaintiff could be 27 expected to perform a job, 8 hours per day, 5 days per week on a sustained basis 50% or less compared 28 to an average worker. They also opined that Plaintiff was unable to obtain and retain work in a 1 competitive work environment, 8 hours per day, 5 days per week for a continuous period of six 2 months or more because of her impairments or limitations. AR 438. 3 The ALJ found PA Hernandez and Dr. Rubio’s assessment “not persuasive.” AR 30. In so 4 doing, the Court finds that the ALJ appropriately evaluated this opinion under the new regulations.4 5 First, the ALJ considered that PA Hernandez last saw Plaintiff in August 2019, but she did not render 6 her opinion until June 2020. AR 30, 364, 438. Under the new regulations, an ALJ may properly 7 consider the relationship with the claimant, including the frequency of visits with the medical source. 8 20 C.F.R. § 404.1520c(b)(2), (c)(3)(ii). Plaintiff does not challenge this determination by the ALJ. 9 Second, the ALJ found that the opinion “was not well supported by Ms. Hernandez’s treatment 10 notes.” AR 30. This reason expressly invokes the supportability factor, which is one of the key 11 factors an ALJ must consider when determining the persuasiveness of a medical opinion. 20 C.F.R. § 12 404.1520c(b)(2). The more relevant objective evidence and supporting explanations that support a 13 medical opinion, the more persuasive that medical opinion is. 20 C.F.R. § 404.1520c(c)(1). Here, the 14 ALJ acknowledged that Plaintiff’s treatment notes with Adventist Health Community, including PA 15 Hernandez’s notes, did contain positive findings related to the cervical and lumbar spine, such as a 16 slowed gait, listing of the lumbar spine, and positive straight leg testing in August and December 17 2018, as well as in March 2019. AR 30, 323 (August 2018), 342 (December 2018), 344-45 (March 18 2019). However, in assessing supportability of the opinion, the ALJ determined that the bulk of PA 19 Hernandez’s treatment notes from February 2018 through August 2019, including examinations in 20 August 2018 and March 2019, generally revealed no acute distress and unremarkable musculoskeletal 21 and neurological findings, including with regard to gait, motor function, and sensation. AR 30, 326 22 [normal gait, no acute distress, grossly intact motor and sensory examination], 333 [normal gait, 23 grossly intact motor and sensory examination], 338 [no acute distress, normal gait, normal motor 24 function], 349 [no acute distress, normal gait, normal motor function], 352 [no acute distress, normal 25 26 4 The ALJ noted Ms. Hernandez “had the opportunity to participate in the claimant’s care, with Dr. 27 Rubio reviewing the treatment notes at times.” AR 30. For ease of understanding, and to conform with the treatment record, the Court will refer to the assessment as an opinion rendered by PA 28 Hernandez. 1 gait, grossly intact motor and sensory examination], 364 [no acute distress, normal gait, normal motor 2 function]. Plaintiff does not dispute the nature of these evaluation findings. Instead, Plaintiff contends 3 that the ALJ erred by relying “heavily upon examination findings from visits for acute care, wholly 4 unrelated to Plaintiff’s complaints of disabling back pain.” (Doc. 18 at 9.) Plaintiff’s contention is not 5 persuasive. The ALJ properly considered PA Hernandez’s objective findings on examination 6 throughout the course of treatment to determine if the opined limitations were supported. Moreover, 7 Plaintiff’s argument regarding disabling back pain is undermined by treatment records demonstrating 8 that she only infrequently complained to PA Hernandez about such disabling pain. 9 In connection with Plaintiff’s asthma, the ALJ also noted that PA Hernandez’s treatment notes 10 revealed unremarkable respiratory findings. AR 322 [lungs clear to auscultation, no wheezes or 11 abnormal breath sounds], 326 [lungs clear to auscultation], 333 [lungs clear to auscultation], 338 12 [lungs clear to auscultation, respirations non-labored, breath sounds equal], 342 [lungs clear to 13 auscultation, respirations non-labored, breath sounds equal], 344 [lungs clear to auscultation], 349 14 [lungs clear to auscultation, respirations non-labored, breath sounds equal], 352 [lungs clear to 15 auscultation], 361 [denied any current or recent exacerbation of asthma], 364 [lungs clear to 16 auscultation, respirations non-labored, breath sounds equal]. Even when Plaintiff complained to PA 17 Hernandez that her asthma was “starting to act up,” a physical examination of her respiratory system 18 showed: “Lungs are clear to auscultation, Respirations are non-labored, Breath sounds are equal.” 19 AR 335, 338. Plaintiff does not challenge the ALJ’s determination regarding unremarkable 20 respiratory findings. 21 Third, the ALJ found that PA Hernandez’s opinion was “not consistent with the relevant 22 medical evidence of record as a whole.” AR 30. The ALJ’s reasoning invokes the consistency factor, 23 which means the extent to which a medical opinion is “consistent . . . with the evidence from other 24 medical sources and nonmedical sources in the claim’” 20 C.F.R. § 404.1520c(c)(2). For instance, the 25 ALJ noted that while Plaintiff had asthma exacerbations in October 2018 and January 2020, she 26 otherwise had unremarkable respiratory findings. AR 30, 318, 320, 322, 326, 330 [October 2018: 27 respirations non-labored, breath sounds equal, symmetrical chest wall expansion, moderate ronchi and 28 minimal expiratory wheeze], 333, 338, 342, 344, 349, 352, 364, 375 [chest/lungs symmetric with 1 normal excursion, clear to auscultation], 399-408 [January 2020: emergency treatment for asthma 2 with acute exacerbation, no acute disease of the chest on x-ray, oxygen saturation 98%]. 3 Additionally, the ALJ noted record evidence that on January 6, 2017, the date following both a 4 motor vehicle accident and her alleged onset date, emergency medical records showed that Plaintiff 5 had full range of motion of the neck and back with no tenderness of the back, independent ambulation 6 and normal sensation, motor function, coordination, and strength. AR 30, 423-26. Following 7 treatment, Plaintiff was able to move her neck and back without difficulty or grimace. AR 426. In 8 March 2017, a physical examination completed by Dr. Timothy Watson showed no scoliosis or 9 spasms, normal gait with no use of an assistive device, normal lumbar motor function, as well as intact 10 sensation, lower extremity strength, and reflexes. AR 30, 428-32. Although Plaintiff had pain on 11 elevated/supine straight leg raising on the right and left, her straight leg raise-extended/sitting was 12 negative on both the right and left. AR 431. In October 2018, the claimant had normal strength, 13 normal range of motion, and normal gait. AR 30, 331. In January 2020, Plaintiff had no 14 musculoskeletal deformity, no acute distress and no neurological deficit. AR 30, 406. 15 Critically, the ALJ also found that PA Hernandez’s assessment was largely inconsistent with 16 the October 2019 consultative examination by Roger Wagner, M.D. AR 30. For example, the ALJ 17 noted Dr. Wagner’s observation that Plaintiff did not have difficulty getting up and down from a chair, 18 walking to the examination room, bending at the waist, or getting on or off the examination table, and 19 she appeared comfortable while sitting. AR 30, 374-75. Dr. Wagner also noted that Plaintiff had good 20 dexterity and flexibility with normal gait, station, and coordination. AR 30, 375. The ALJ considered 21 that while PA Hernandez assessed significant limitations in Plaintiff’s use of the upper extremities, 22 those limitations were not consistent with the objective findings, including Dr. Wanger’s observations 23 that Plaintiff had normal muscle bulk and tone, sensation, reflexes, strength, including grip strength, 24 with no evidence of atrophy. AR 60, 377. Indeed, while PA Hernandez opined that Plaintiff could 25 only reach overhead with her right arm 5-10% of the time and 5-10% of the time with her left arm, Dr. 26 Wagner opined that ‘[w]orking with arms overhead may be performed frequently.” AR 377. Dr. 27 Wagner also indicated that “[p]ushing and pulling may be performed frequently with limitations due to 28 the neck pain.” AR 377. Dr. Wagner expressly indicated that there were no other manipulative 1 limitations. AR 377. Insofar as Plaintiff contends that the ALJ failed to set forth specific and 2 legitimate reasons for crediting Dr. Wagner’s opinion over PA Hernandez’s opinion (Doc. 18 at 11), 3 these standards of articulation are no longer applicable. 4 As a final matter, the ALJ concluded that PA Hernandez’s assessment was not consistent with 5 Plaintiff’s relatively conservative treatment history. AR 30. Notwithstanding that the ALJ only cites 6 generally to the medical record to support this conclusion, the ALJ’s decision clearly identified and 7 evaluated Plaintiff’s conservative treatment history. Meade v. Kijakazi, No. 1:20-CV-00519-BAM, 8 2021 WL 4429418, at *5 (E.D. Cal. Sept. 27, 2021) (finding no error where court able to adequately 9 determine the basis for the ALJ’s decision). In particular, the ALJ considered that despite a 10 recommendation both for surgery or for consideration of injections (AR 433), Plaintiff had not had 11 surgery or injections. AR 25. Plaintiff argues that the ALJ’s reasoning is disingenuous because the 12 record suggests that she lacked insurance for needed care (AR 374), and she declined surgery due to 13 lack of insurance and financial constraints (AR 322, 374. (Doc. 18 at 11.) However, when surgery 14 was recommended, Plaintiff’s provider noted that Plaintiff “did not appear to be interested in surgical 15 treatment.” AR 433. Further, although Plaintiff asserted that she declined surgery due to a lack of 16 health insurance, she later told PA Hernandez in March 2019 that she was “not ready at this point to 17 proceed” with surgery. AR 344. Additionally, Plaintiff testified at the hearing in May 2020 that she 18 never asked about insurance coverage for her surgery. AR 74-75. The ALJ also considered that 19 Plaintiff had not undergone any physical therapy or chiropractic adjustment after 2017. AR 25. 20 According to the record, Plaintiff underwent less than a month of physical therapy and two months of 21 chiropractic treatment in early 2017, but there is no indication of further treatment. AR 384-88, 389- 22 98. While Plaintiff reportedly was instructed to discontinue such conservative treatment, there is no 23 indication that Plaintiff sought alternative treatment for her back or neck, such as injections. The ALJ 24 also noted that Plaintiff had no documented emergency room evaluations due to uncontrolled pain, and 25 she represented in 2020 that she was not taking medication for pain. AR 25, 62. 26 Based on the foregoing, the Court finds that the ALJ properly considered of the factors of 27 supportability and consistency in evaluating PA Hernandez’s opinion and the ALJ’s decision to deem 28 PA Hernandez’s opinion unpersuasive is supported by substantial evidence. 1 B. Plaintiff’s Subjective Testimony 2 Plaintiff argues that “the ALJ failed to identify any clear and convincing reason, supported by 3 the record, to reject Plaintiff’s symptom complaints.” (Doc. 18 at 14.) 4 In deciding whether to admit a claimant’s subjective complaints, the ALJ must engage in a 5 two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm’r of Soc. 6 Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). First, the claimant must produce objective medical 7 evidence of her impairment that could reasonably be expected to produce some degree of the symptom 8 or pain alleged. Garrison, 759 F.3d at 1014. If the claimant satisfies the first step and there is no 9 evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of her 10 symptoms only by offering specific, clear and convincing reasons for doing so. Id. at 1015. 11 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 12 expected to cause the alleged symptoms, but discounted her statements concerning the intensity, 13 persistence and limiting effects of those symptoms. AR 22. The ALJ was therefore required to 14 provide specific, clear and convincing reasons for discounting Plaintiff’s subjective complaints. 15 The Court finds that the ALJ provided specific, clear, and convincing reasons for discounting 16 Plaintiff’s subjective complaints. First, the ALJ acknowledged that Plaintiff had limitations stemming 17 from lumbar degenerative disc disease with disc herniation at the L4-L5 level and degenerative disc 18 disease of the cervical spine with multilevel disc herniations, thecal sac narrowing, facet arthropathy, 19 and foraminal narrowing. The ALJ also acknowledged that Plaintiff was in a motor vehicle accident. 20 AR 22. Notwithstanding this acknowledgement, the ALJ found that Plaintiff’s statements about the 21 intensity, persistence, and limiting effects of her symptoms were inconsistent because “the objective 22 medical evidence does not support them.” AR 22. Although lack of supporting medical evidence 23 cannot form the sole basis for discounting testimony, it is a factor that the ALJ can consider. See 24 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). While the record contained positive findings 25 regarding her lumbar and cervical spine, the ALJ considered that the weight of the objective 26 examination findings did not support the level of limitation alleged. AR 23. For example, on January 27 6, 2017, during evaluation following her motor vehicle accident, Plaintiff had full range of motion of 28 the neck and back with no tenderness of the back, independent ambulation and normal sensation, 1 motor function, coordination, and strength. Following treatment, Plaintiff was able to move her neck 2 and back without difficulty or grimace. AR 23, 423-26. 3 In March 2017, a physical examination completed by Dr. Watson showed no scoliosis or 4 spasms, normal gait with no use of an assistive device, normal lumbar motor function, as well as intact 5 sensation, lower extremity strength, and reflexes. Although Plaintiff had pain on elevated/supine 6 straight leg raising on the right and left, her straight leg raise-extended/sitting was negative on both the 7 right and left. AR 24, 428-32. 8 In February 2018, Plaintiff had a grossly intact motor and sensory examination, normal gait 9 and was in no acute distress. AR 318. Similarly, in May 2018, she had a grossly intact motor 10 examination and was in no acute distress. AR 320-21. 11 Although in August 2018 Plaintiff presented with a slow, careful gait, notable listing of the 12 lumbar spine, decreased range of motion with all movements, and positive straight leg testing (322- 13 23), the ALJ noted that only 12 days later, Plaintiff had a normal gait and a grossly intact motor and 14 sensory examination and was in no acute distress. AR 24, 325-26. In October 2018, Plaintiff again 15 presented with normal range of motion, normal strength, and normal gait. AR 331. Likewise, in 16 November 2018, Plaintiff had a normal gait and grossly intact motor and sensory examination. AR 24, 17 333, 338. 18 The ALJ acknowledged that in December 2018, Plaintiff again had lumbar spine listing, 19 decreased range of motion with all movements, positive straight leg testing on the right and left and a 20 slow, careful gait. AR 24, 342. Also, in March 2019, she had lumbar spine listing, decreased range of 21 motion with all movements, and slower careful gait. AR 344-45. But, as the ALJ noted, two weeks 22 after the March 2019 examination, Plaintiff presented with a normal gait, normal motor function and 23 was in no acute distress. AR 24, 349. Thereafter, in April 2019, she also presented with a normal gait 24 and grossly intact motor and sensory examination. AR 24, 352. Likewise, in August 2019, Plaintiff 25 again had a normal gait and normal motor function with no acute distress or tenderness of the neck. 26 AR 24, 364. 27 The ALJ also considered that during the consultative examination with Dr. Wagner in October 28 2019, Plaintiff had a somewhat stiff neck with reduced cervical and lumbar range of motion. Supine 1 straight leg raising was positive for radicular symptoms on the left, slightly positive on the right 2 without radiation, but seated straight leg raise was negative. Plaintiff was able to easily get up and 3 down from a chair, walk at a normal speed to the examination room without assistance, and sit 4 comfortably during the examination. Nevertheless, she was able to get on and off the examination 5 table and bend at the waist, demonstrating good dexterity and flexibility with the ability to bring her 6 ankles up to her knees to take off her socks. She had normal gait, station, coordination, and negative 7 Romberg testing with the ability to take several steps on heels and toes. She also had normal muscle 8 bulk and tone, normal sensation, reflexes, and strength, including grip strength, with no evidence of 9 muscle atrophy. AR 24, 374-77. Additionally, the ALJ noted that an evaluation in January 2020, 10 revealed no musculoskeletal deformity, no acute distress and no neurological deficits, with normal 11 motor function. AR 25, 406. 12 The objective examination evidence generally does not support Plaintiff’s subjective 13 allegations that she must lie down for most of the day, she has difficulty turning her neck, sitting, 14 standing, and walking, she is unable to stand even 15 to 20 minutes and she can lift less than five 15 pounds. AR 22. The Court therefore concludes that the ALJ did not err in discounting Plaintiff’s 16 subjective complaints as unsupported by the objective medical record. 17 Second, the ALJ discounted Plaintiff’s subjective complaints based on her relatively 18 conservative treatment history. AR 25. An ALJ is permitted to consider evidence of conservative 19 treatment in evaluating a claimant’s subjective complaints. See Parra v. Astrue, 481 F.3d 742, 750-51 20 (9th Cir. 2007) (finding evidence of conservative treatment sufficient to discount claimant’s testimony 21 regarding severity of impairment). As previously discussed, the ALJ appropriately considered that 22 despite a recommendation both for surgery or for consideration of injections (AR 433), Plaintiff had 23 no surgery or injections. Plaintiff claimed at one point that she did not have surgery due to a lack of 24 insurance, but she later reported that she did not pursue surgery because she was not ready to have it. 25 AR 344. An ALJ may discount a plaintiff’s subjective complaints based on an unexplained, or 26 inadequately explained, failure to seek treatment or follow a prescribed course of treatment. See 27 Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991). The ALJ also considered that Plaintiff had not 28 undergone any physical therapy or chiropractic adjustment after 2017, had no documented emergency 1 room evaluations due to uncontrolled pain, and she represented in 2020 that she was not taking 2 medication for pain. AR 25, 62. 3 Third, the ALJ considered that the medical record demonstrated some improvement with 4 treatment. AR 25. An ALJ may discount a plaintiff’s subjective complaints when symptoms can be 5 controlled by treatment and/or medication. See Deyon v. Kijakazi, No. 1:20-CV-01532-SKO, 2022 6 WL 1782465, at *10 (E.D. Cal. June 1, 2022) (citations omitted). To support this reason, the ALJ 7 cites to limited chiropractic and physical therapy records from February and March 2017, along with 8 reported improvement with anti-inflammatory medication. AR 25, 385-86, 390-92, 394-97, 427. The 9 Court does not find this to be an adequate reason for discounting Plaintiff’s complaints. Plaintiff 10 reportedly was advised to discontinue chiropractic care and physical therapy and the noted 11 improvement with medication was contained in a single evaluation note in March 2017. AR 384, 427. 12 Even if this reason is inadequate, there are sufficient other reasons to support the assessment of 13 Plaintiff’s subjective complaints. See Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009); Batson v. 14 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). 15 Fourth, the ALJ considered Plaintiff’s activities of daily living, noting in particular that 16 Plaintiff at times reported activities that suggested a higher level of functioning. AR 27. An ALJ may 17 properly discount a claimant’s subjective complaints when the daily activities demonstrate an 18 inconsistency between what the claimant can do and the degree that disability is alleged. Molina v. 19 Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012) (an ALJ may consider “whether the claimant engages 20 in daily activities inconsistent with the alleged symptoms”). Even where a Plaintiff's activities suggest 21 some difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the 22 extent that they contradict claims of a totally debilitating impairment. Molina, 674 F.3d at 1113. Here, 23 Plaintiff reported “quite limited” daily activities, but the ALJ noted Plaintiff’s testimony that she had 24 driven and performed some shopping since her surgery recommendation. AR 27, 58-59. She also 25 indicated in March 2019 that she sometimes shopped alone and drove short distances. AR 27, 270. In 26 October 2019, she reported to Dr. Wagner that she cooked and cleaned, drove a few times a week, 27 shopped, performed her own activities of daily living without assistance, and walked a bit for exercise. 28 AR 27, 374. 1 Finally, the ALJ noted that Plaintiff worked at non-disqualifying substantial gainful activity 2 levels between August 2017 and January 2018. AR 27, 208-09, 211, 214, 217, 218, 220-22, 224, 247. 3 The ALJ properly considered Plaintiff’s ability to work during the relevant period in evaluating her 4 subjective complaints. See Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009) (“ALJ made specific 5 findings in support of his decision to discount [the claimant’s] testimony,” including that she “recently 6 worked as a personal caregiver for two years, and has sought out other employment since then”); see 7 also Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (ability to do carpentry work undermined 8 complaints of disabling symptoms); cf. Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (“An ALJ 9 may consider any work activity, including part-time work, in determining whether a claimant is 10 disabled.”). Plaintiff argues that the desire to work, or a failed effort to work, in and of itself, is not a 11 sufficient basis to discount Plaintiff’s subjective complaints. (Doc. 18 at 14.) Here, however, the ALJ 12 did not rely solely on Plaintiff’s work activity to discount her subjective complaints. The Court also 13 finds that the ALJ appropriately determined that Plaintiff’s ability to work after her alleged onset date 14 suggested that her functioning, at least at times, had been greater than alleged. AR 27. 15 CONCLUSION AND RECOMMENDATION 16 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 17 evidence in the record as a whole and is based on proper legal standards. Accordingly, IT IS 18 HEREBY RECOMMENDED as follows: 19 1. Plaintiff’s appeal from the administrative decision of the Commissioner of Social 20 Security be denied; and 21 2. The Clerk of this Court be directed to enter judgment in favor of Defendant Kilolo 22 Kijakazi, Acting Commissioner of Social Security, and against Plaintiff Marina A. 23 Vera. 24 These Findings and Recommendations will be submitted to the United States District Judge 25 assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 26 served with these findings and recommendations, the parties may file written objections with the 27 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 28 Recommendations.” The parties are advised that the failure to file objections within the specified time 1 may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. 2 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 3 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED.

6 Dated: August 11, 2022 /s/ Barbara A. McAuliffe _ 7 UNITED STATES MAGISTRATE JUDGE

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