Washington v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: September 20, 2023
• Docket: 2:22-cv-00649
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Juanita Washington, No. CV-22-00649-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff challenges the denial of her application for benefits under the Social 16 Security Act (“the Act”) by the Commissioner of the Social Security Administration 17 (“Commissioner”). The Court has reviewed Plaintiff’s opening brief (Doc. 12), the 18 Commissioner’s answering brief (Doc. 13), and Plaintiff’s reply (Doc. 14), as well as the 19 Administrative Record (Doc. 11, “AR”), and now affirms the Administrative Law Judge’s 20 (“ALJ”) decision. 21 I. Procedural History 22 On November 20, 2019 Plaintiff filed an application for disability and disability 23 insurance benefits, alleging disability beginning on August 2, 2019. (AR at 15.) The Social 24 Security Administration (“SSA”) denied Plaintiff’s application at the initial and 25 reconsideration levels of administrative review and Plaintiff requested a hearing before an 26 ALJ. (Id.) On April 23, 2021, following a telephonic hearing, the ALJ issued an 27 unfavorable decision. (Id. at 15-26.) The Appeals Council later denied review. (Id. at 28 1-4.) 1 II. The Sequential Evaluation Process And Judicial Review 2 To determine whether a claimant is disabled for purposes of the Act, the ALJ 3 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 4 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 5 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 6 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 7 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 8 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 9 step three, the ALJ considers whether the claimant’s impairment or combination of 10 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 11 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 12 found to be disabled. Id. At step four, the ALJ assesses the claimant’s residual functional 13 capacity (“RFC”) and determines whether the claimant is still capable of performing past 14 relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and 15 final step, where she determines whether the claimant can perform any other work in the 16 national economy based on the claimant’s RFC, age, education, and work experience. 20 17 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 18 An ALJ’s factual findings “shall be conclusive if supported by substantial 19 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 20 the Commissioner’s disability determination only if it is not supported by substantial 21 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 22 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 23 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 24 evidence is susceptible to more than one rational interpretation, one of which supports the 25 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 26 954 (9th Cir. 2002) (citations omitted). In determining whether to reverse an ALJ’s 27 decision, the district court reviews only those issues raised by the party challenging the 28 decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 1 III. The ALJ’s Decision 2 The ALJ found that Plaintiff had not engaged in substantial, gainful work activity 3 since the alleged onset date and that Plaintiff had the following severe impairments: 4 “diabetes, morbid obesity, knee degenerative joint disease, and degenerative disc disease.” 5 (AR at 17-18.)1 Next, the ALJ concluded that Plaintiff’s impairments did not meet or 6 medically equal a listing. (Id. at 18-19.) Next, the ALJ calculated Plaintiff’s RFC as 7 follows: 8 [T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can occasionally 9 operate foot controls bilaterally; never climb ladders, ropes, or scaffolds; never crawl; can occasionally climb ramps or stairs; can occasionally stoop, 10 crouch, kneel, and balance; can have occasional exposure to non-weather related extreme cold, non-weather related extreme heat, non-weather related 11 wetness, and non-weather related humidity; can have no exposure to dangerous machinery; and can have no exposure to unprotected heights. 12 13 (Id. at 19.) 14 As part of this RFC determination, the ALJ evaluated Plaintiff’s symptom 15 testimony, concluding that Plaintiff’s “medically determinable impairments could 16 reasonably be expected to cause the alleged symptoms” but that Plaintiff’s “statements 17 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 18 consistent with the medical evidence and other evidence in the record for the reasons 19 explained in this decision.” (Id. at 20-21.) The ALJ also evaluated opinion evidence from 20 various medical sources, concluding as follows: (1) Dr. K. Scavetta, M.D., state agency 21 medical consultant (“generally persuasive”); (2) Dr. L. Schattzin, M.D., state agency 22 medical consultant (“generally persuasive”); (3) Dr. N. Lazorwitz, Psy.D. state agency 23 psychological consultant (“persuasive”); (4) Dr. E. Salk, Ph.D., state agency psychological

24 1 The ALJ also noted that Plaintiff presented evidence of sleep apnea, hypertension, gastroesophageal reflux disease, palpations, history of broken arm, and diabetic 25 retinopathy but found that “the record does not indicate that these impairments cause more than minimal limitations on the claimant’s ability to perform basic work activities, and they 26 are thus nonsevere. Such a determination is immaterial in this case, however, as the undersigned has taken into account the claimant’s complete physical functioning in the 27 residual functional capacity analysis, below.” (AR at 18.) Further, although Plaintiff “reported anxiety and anxiety attacks,” the ALJ determined it was “not a medically 28 determinable impairment due to a lack of objective evidence.” (Id.) 1 consultant (“persuasive”); (5) Erica Neal, PA-C, consultative examiner (“partially 2 persuasive”), (6) Christine Joy, PA (“unpersuasive”); (7) Rachel Giroux, D.O., treating 3 provider (“unpersuasive”); and (8) Phillip Prusinski, FNP-C, treating provider 4 (“unpersuasive”). (Id. at 22-24.) 5 Based on the testimony of a vocational expert, the ALJ concluded that Plaintiff 6 could perform her past relevant work as a telephone solicitor, teacher aide II, social services 7 aide, and employment training specialist. (Id. at 24-25.) Thus, the ALJ concluded that 8 Plaintiff is not disabled. (Id. at 25-26.) 9 IV. Discussion 10 Plaintiff presents three issues on appeal: (1) whether the ALJ failed to properly 11 evaluate the medical opinions of Dr. Giroux; (2) whether the ALJ failed to properly 12 evaluate the medical opinions of FNP-C Prusinski; and (3) whether the ALJ failed to 13 properly evaluate Plaintiff’s symptom testimony. (Doc. 12 at 1, 7.) As a remedy, Plaintiff 14 requests “this case be remanded for further proceedings, including a de novo hearing and 15 new decision.” (Id. at 25.) 16 A. Dr. Giroux 17 1. Standard Of Review 18 In January 2017, the SSA amended the regulations concerning the evaluation of 19 medical opinion evidence. See Revisions to Rules Regarding Evaluation of Medical 20 Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Because the new regulations apply to 21 applications filed on or after March 27, 2017, they are applicable here. 22 The new regulations, which eliminate the previous hierarchy of medical opinions, 23 provide in relevant part as follows: 24 We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical 25 finding(s), including those from your medical sources . . . . The most 26 important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability 27 . . . and consistency . . . . 28 1 20 C.F.R. § 416.920c(a).2 Regarding the “supportability” factor, the new regulations 2 explain that the “more relevant the objective medical evidence and supporting explanations 3 presented by a medical source are to support his or her medical opinion(s), . . . the more 4 persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). Regarding the 5 “consistency” factor, the “more consistent a medical opinion(s) . . . is with the evidence 6 from other medical sources and nonmedical sources in the claim, the more persuasive the 7 medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2). 8 Recently, the Ninth Circuit confirmed that the “recent changes to the Social Security 9 Administration’s regulations displace our longstanding case law requiring an ALJ to 10 provide ‘specific and legitimate’ reasons for rejecting an examining doctor’s opinion.” 11 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). Thus, “the former hierarchy of 12 medical opinions—in which we assign presumptive weight based on the extent of the 13 doctor’s relationship with the claimant—no longer applies. Now, an ALJ’s decision, 14 including the decision to discredit any medical opinion, must simply be supported by 15 substantial evidence.” Id. With that said, “[e]ven under the new regulations, an ALJ cannot 16 reject an examining or treating doctor’s opinion as unsupported or inconsistent without 17 providing an explanation supported by substantial evidence. The agency must articulate 18 how persuasive it finds all of the medical opinions from each doctor or other source and 19 explain how it considered the supportability and consistency factors in reaching these 20 findings.” Id. at 792 (cleaned up). Although an “ALJ can still consider the length and 21 purpose of the treatment relationship, the frequency of examinations, the kinds and extent 22 of examinations that the medical source has performed or ordered from specialists, and 23 whether the medical source has examined the claimant or merely reviewed the claimant’s 24 records . . . the ALJ no longer needs to make specific findings regarding these relationship 25 factors . . . .” Id. 26 …

27 2 Other factors that may be considered by the ALJ in addition to supportability and consistency include the provider’s relationship with the claimant, the length of the 28 treatment relationship, the frequency of examinations, the purpose and extent of the treatment relationship, and the specialization of the provider. 20 C.F.R. § 416.920c(c). 1 2. Dr. Giroux’s Opinions 2 On December 10, 2019, Dr. Giroux examined Plaintiff. (Id. at 572-73.) During the 3 appointment, Dr. Giroux filled out a form entitled “Physical Assessment.” (Id. at 572-73.) 4 In filling out the form (which was provided in check-box format), Dr. Giroux diagnosed 5 Plaintiff with “low back pain, chronic pain, and chronic [bilateral] knee pain.” (Id. at 572.) 6 Dr. Giroux then opined that Plaintiff would have various limitations as a result of these 7 conditions, including that Plaintiff would need “to recline or lie down during a hypothetical 8 8-hour workday in excess of the typical 15-minute break in the morning, the 30-60 minute 9 lunch, and the typical 15-minute break in the afternoon,” could only walk “5-10 feet” 10 without “rest or significant pain,” could only sit 1 hour per day, could only stand/walk 0 11 hours per day, and would need “10-15 minute” breaks “every 30-60 minutes.” (Id.) Dr. 12 Giroux further opined that Plaintiff could “never” lift any weight and wrote “not able to 13 assess” in relation to questions regarding Plaintiff’s ability to use her hands, fingers, or 14 arms. (Id.) Finally, Dr. Giroux opined that Plaintiff would be absent from work “more 15 than four times a month.” (Id. at 573.) 16 3. The ALJ’s Evaluation Of Dr. Giroux’s Opinions 17 The ALJ found Dr. Giroux’s opinions unpersuasive. (Id. at 23.) The ALJ’s full 18 rationale was as follows: 19 The undersigned considered the opinion of treatment provider Rachel Giroux, DO, who opined, for example, that the claimant can sit for one hour 20 and stand or walk for 0 hours in an 8-hour workday, has to take unscheduled breaks every 30-60 minutes for 10-15 minutes, can never lift even less than 21 10 pounds, and is likely to be absent from work as a result of her impairments or treatment more than four times per month. This opinion is unpersuasive. 22 While Dr. Giroux is a treatment provider, she provided minimal analysis in support of these opinions, which she made on a check-box form. 23 Additionally, these limitations are not supported by her own examination findings of, for example, tenderness. Furthermore, the extreme intensity of 24 these limitations is unsupported by and inconsistent with the longitudinal record, as described in the analysis of the Disability Determination Services 25 consultant findings, above. 26 (Id., record citations omitted.) 27 … 28 … 1 4. The Parties’ Arguments 2 Plaintiff argues that “the ALJ failed to properly explain how she considered both 3 the supportability and consistency factors in rejecting Dr. Giroux De Armendariz’s 4 opinion, resulting in error.” (Doc. 12 at 10.) Regarding supportability, Plaintiff argues 5 that the ALJ’s finding that “Dr. Giroux De Armendariz’s opinion was not supported by her 6 examination notes” is in error because (1) “the ALJ only refers to the positive finding that 7 Plaintiff exhibited ‘tenderness’ to suggest that the finding did not support Dr. Giroux De 8 Armendariz’s limitations”; and (2) “the ALJ’s boilerplate finding that Dr. Giroux De 9 Armendariz’s opinion is not supported by her examinations is further unsupported by 10 substantial evidence where she fails to provide an adequate explanation in support of her 11 findings.” (Id. at 10-11.) More specifically, Plaintiff identifies various reported symptoms 12 such as “left arm pain, night sweats, insomnia, dyspnea, abdominal pain, irregular 13 heartbeat/palpitations, swelling, joint instability, joint tenderness, limping, weakness, 14 anxiety, skin lesions, and vertigo” that the ALJ does not address. (Id. at 12.) As for the 15 consistency factor, Plaintiff again argues that the ALJ’s rationale is “legally erroneous 16 where the ALJ fails to adequately explain her findings.” (Id. at 12-13.) Plaintiff then 17 identifies a variety of symptoms that purportedly went unaddressed by the ALJ, including 18 “pain elicited by motion, pronation, and supination of the left forearm; pain, tenderness, 19 muscle spasm, abnormal motion, abnormal flexion, abnormal extension, and abnormal 20 spine rotation bilaterally of the lumbosacral spine upon palpation and/or motion; nontender 21 mass of right lateral thigh with erythema and drainage present; and mass present over left 22 lateral ankle that was tender to palpation.” (Id. at 13-14.) Finally, Plaintiff argues that the 23 ALJ’s cross-reference to the opinions of the state examiners “cannot constitute a valid 24 explanation of the consistency factor under the regulations.” (Id. at 14.) 25 The Commissioner disagrees and defends the sufficiency of the ALJ’s rationale for 26 discrediting the opinions of Dr. Giroux. (Dox. 13 at 6-12.) As for the supportability factor, 27 the Commissioner argues that it is permissible to discount a medical opinion when the 28 opinion is unsupported by the provider’s “examination findings and treatment notes.” (Id. 1 at 7-9.) The Commissioner further argues that although the paragraph discussing Dr. 2 Giroux’s opinions only provided “one example of a discrepancy,” the ALJ provided 3 additional “discussions of Dr. Giroux De Armendariz’s notes throughout the decision, 4 showing that these notes contradicted her brief and unexplained answers in her check-box 5 opinion,” and emphasizes that “reviewing courts read an ALJ’s decision as a whole and an 6 ALJ is not required to restrict her analysis to a specific section of the decision.” (Id. at 7- 7 8.) As for the consistency factor, the Commissioner contends there is substantial evidence 8 to support the ALJ’s finding of inconsistency because “the ALJ noted that much of the 9 medical evidence indicated that Plaintiff was well-developed, well-nourished, doing well 10 overall, and exhibited normal gait, posture, stance, muscle strength, musculoskeletal range 11 of motion, coordination, motor functioning, grip strength, muscle bulk, deep tendon 12 reflexes, sensation, heart function, peripheral perfusion, heart sounds, left ventricular 13 systolic function, and bowel sounds” which is inconsistent with the “extreme intensity” of 14 Dr. Giroux’s limitations. (Id. at 10, citing AR at 408-413, 508, 514, 542, 560, 607, 673, 15 674, 677, 678, 705-713, 728, 746, 749, 757, 761, 770, 771, 787, 788, 856, 879.) The 16 Commissioner further argues that subsequent medical appointments (after the treatments 17 by Dr. Giroux) demonstrate, among other things, “normal posture and gait, no deformity 18 or scoliosis, and normal muscle strength.” (Id. at 11-12.) Finally, the Commissioner argues 19 that “[e]ven if this Court finds Plaintiff’s interpretation of these records to be rational, the 20 ALJ’s interpretation is also rational and must be upheld under the substantial evidence 21 standard.” (Id. at 12.) 22 In reply, Plaintiff argues that the ALJ’s evaluation of Dr. Giroux’s opinions remains 23 erroneous because (1) the ALJ did not adequately explain “how she considered any of the 24 above findings in reaching her conclusions,” (2) the arguments made by the Commissioner 25 are “post-hoc rationalization[s] that the Court is not permitted to accept,” and (3) the ALJ 26 did not provide “any explanation necessary to obtain a glimpse in her reasoning as to how 27 the state agency consultants’ opinions that Plaintiff could perform light work with 28 additional limitations were nonetheless consistent with greater findings of the record noting 1 muscle spasms, antalgic gait, and spinal pain with motion as described above.” (Doc. 14 2 at 3-6.) 3 5. Analysis 4 The ALJ’s evaluation of Dr. Giroux’s opinions is free of harmful error. “The agency 5 must articulate how persuasive it finds all of the medical opinions from each doctor or other 6 source and explain how it considered the supportability and consistency factors in reaching 7 these findings.” Woods, 32 F.4th at 792 (cleaned up). Here, the ALJ stated that although 8 “Dr. Giroux is a treatment provider, she provided minimal analysis in support of these 9 opinions, which she made on a check-box form,” “these limitations are not supported by 10 her own examination findings of, for example, tenderness,” and “the extreme intensity of 11 these limitations is unsupported by and inconsistent with the longitudinal record, as 12 described in the analysis of the Disability Determination Services consultant findings, 13 above.” (AR at 23.) Thus, the ALJ expressly considered the supportability and consistency 14 factors. 15 The ALJ’s determination as to each factor was also supported by substantial 16 evidence. The ALJ addressed the supportability factor by stating that Dr. Giroux’s opinion 17 “provided minimal analysis in support of these opinions, which she made on a check-box 18 form.” (AR at 24.) To be sure, “there is no authority that a ‘check-the-box’ form is any 19 less reliable than any other type of form.” Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th 20 Cir. 2017). Nevertheless, “[a]n ALJ is not required to take medical opinions at face value, 21 but may take into account the quality of the explanation when determining how much 22 weight to give a medical opinion. While an opinion cannot be rejected merely for being 23 expressed as answers to a check-the-box questionnaire, the ALJ may permissibly reject 24 check-off reports that do not contain any explanation of the bases of their conclusions.” 25 Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (citations and internal quotation marks 26 omitted). 27 Plaintiff cites Esparza v. Colvin, 631 F. App’x 460 (9th Cir. 2015), and Garrison v. 28 Colvin, 759 F.3d 995 (9th Cir. 2014), for the proposition that the “mere fact that the opinion 1 was completed via check-box form and did not include explanations of Dr. Giroux De 2 Armendariz’s limitations is not a valid basis by which the ALJ can reject the physician’s 3 opinion.” (Doc. 12 at 9-10.) But Esparza was decided under the old regulations. There, 4 the checkbox form was completed by a treating physician, which meant that the ALJ 5 needed to “set[] out a detailed and thorough summary of the facts and conflicting clinical 6 evidence, stating his interpretation thereof, and making findings.” Ezparza, 631 F. App’x 7 at 462. Under the new regulations, ALJs are not required to make a heightened showing 8 before discrediting the opinions of a treating physician. And as noted, an ALJ may, under 9 appropriate circumstances, discount an unexplained checkbox form (such as the form here) 10 pursuant to the supportability factor. See, e.g., Weiss v. Kijakazi, 2023 WL 4030839, *1 11 (9th Cir. 2023) (“These opinions were in check-box form and were not accompanied by 12 explanation or narrative. Because these opinions contained little in terms of ‘objective 13 medical evidence and supporting explanations,’ the ALJ reasonably found them 14 unpersuasive.”).3 15 The ALJ’s consideration of the supportability factor was also free of harmful error 16 for an additional reason. The ALJ separately concluded that the limitations to which Dr. 17 Giroux opined were “not supported by [Dr. Giroux’s] own examination findings of, for 18 example, tenderness.” (AR at 23.) In the underlying treatment note, Plaintiff was observed 19 as having “moderate” knee pain with “tenderness.” (Id. at 508.) It was rational for the 20 ALJ to conclude that these observations were inconsistent with Dr. Giroux’s extreme 21 opinion that Plaintiff would be unable to walk or stand for any period of time during a 22 workday. (Id. at 572.) Plaintiff argues the ALJ was required to provide a more complete 23 explanation, such as by addressing “how [Plaintiff’s] bilateral knee tenderness and left 24 ankle tenderness accompanied with a nodule about the ankle does not support Dr. Giroux 25 De Armendariz’s limitations, specifically those concerning Plaintiff’s limitations with 26 walking and standing on a fulltime and sustained basis without excessive breaks or 27 3 This case is also distinguishable from Colvin, where the treating provider submitted 28 “hundreds of pages of treatment notes,” 759 F.3d at 1014 n. 17, given that Dr. Giroux only examined Plaintiff a handful of times (AR at 506, 518, 529). 1 absences.” (Doc. 12 at 11.) But the Ninth Circuit’s “cases do not require ALJs . . . to draft 2 dissertations when denying benefits.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 3 2020). Here, the ALJ adequately scrutinized Dr. Giroux’s opinion under the supportability 4 factor. 5 As for the consistency factor, the ALJ concluded that Dr. Giroux’s opinions were 6 “inconsistent with the longitudinal record, as described in the analysis of the Disability 7 Determination Services consultant findings, above.” (AR at 23.) On the preceding page 8 of the opinion, the ALJ summarized the findings and opinions of several other examining 9 medical sources, which demonstrated that Dr. Giroux’s opined-to restrictions were the 10 most severe of the bunch. (Id. at 22-23.) The ALJ also provided a detailed summary of 11 evidence that could rationally be viewed as inconsistent with Dr. Giroux’s restrictive 12 conclusions. For example, on several occasions providers noted “that [Plaintiff’s] gait, 13 posture, stance, muscle strength, musculoskeletal range of motion, coordination, motor 14 functioning, grip strength, muscle bulk, deep tendon reflexes, sensation, heart function, 15 peripheral perfusion, heart sounds, left ventricular systolic function, and bowel sounds 16 were normal, that she was well-developed and well-nourished, and that she was doing well 17 overall.” (Id. at 22, citing id. at 408-13, 508, 514, 542, 560, 607, 673-74, 677-78, 705-713, 18 728, 746, 749, 757, 761, 770-71, 787-88, 856, 879.) Indeed, some of the treatment notes 19 cited by the ALJ, including some from examinations that occurred after Dr. Giroux’s 20 examination of Plaintiff, do not note any restrictions in ambulating. (See, e.g., AR at 706 21 [“The claimant denies significant impact on activities of daily living. The claimant is able 22 to complete self-care activities including meals, hygiene, and light housework. The 23 claimant is not confined to bed, and gets adequate sleep.”].) Under these circumstances, it 24 was rational for the ALJ to conclude that the consistency factor undermined the persuasive 25 value of Dr. Giroux’s opinions. This is true even though, as Plaintiff correctly notes, there 26 are some treatment notes in the record indicating that Plaintiff suffered from “left arm pain, 27 night sweats, insomnia, dyspnea, abdominal pain, irregular heartbeat/palpitations, 28 swelling, joint instability, joint tenderness, limping, weakness, anxiety, skin lesions, and 1 vertigo.” (Doc. 12 at 12, citing AR at 507, 514, 519, 520, 607, 697.) Even so, it was 2 rational for the ALJ to conclude that Plaintiff’s normal gait and motor function were 3 inconsistent with the severe limitations to which Dr. Giroux opined. Baca v. Comm’r of 4 Soc. Sec. Admin., 2021 WL 1827232, *6 (D. Ariz. 2021) (“Although alternative views of 5 this evidence are plausible, the ALJ’s interpretation is a rational one and is therefore 6 entitled to deference.”) (citing Thomas, 278 F.3d at 954). The Court will not reweigh the 7 evidence when it is subject to two competing but reasonable interpretations. Ghanim v. 8 Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (“When evidence reasonably supports either 9 confirming or reversing the ALJ’s decision, we may not substitute our judgment for that of 10 the ALJ.”) (citing Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 11 2004)). 12 Plaintiff’s final criticism is that it was error to allow the ALJ to cross-reference her 13 analysis of the state agency medical consultants’ opinions when evaluating Dr. Giroux’s 14 opinions because the “ALJ’s summary of evidence provides no explanation as to how the 15 isolated negative findings noted above do anything to contradict ‘the intensity of her 16 allegations’ when evaluating the record as a whole.” (Doc. 12 at 14-15.) The Court 17 disagrees. The ALJ was not required to methodically cite each item of evidence upon 18 which she relied. Rather, where an ALJ has summarized and interpreted the pertinent facts 19 and conflicting evidence, the Court is permitted to draw reasonable inferences. Here, the 20 ALJ explicitly cross-referenced the analysis of the state agency medical consultants’ 21 opinions, which in turn cited several pages of medical records that contain objective 22 medical findings that are inconsistent with Dr. Giroux’s restrictions of what is essentially 23 bedrest. (AR at 22-23.) Therefore, the ALJ adequately discussed the consistency of Dr. 24 Giroux’s opinions in relation to the other medical and opinion evidence in the record. 25 … 26 … 27 … 28 … 1 B. FNP-C Prusinski 2 1. FNP-C Prusinski’s Opinions 3 On February 3, 2021, FNP-C Prusinski wrote the following letter: 4 To whom it may concern, 5 Ms. Juanita Washington is a patient of Pueblo Family Physicians and she is requesting this note. Ms. Washington does have known lumbosacral DDD, 6 dextroscoliosis, thoracic spondylosis, DJD of bilateral knees. Due to these ongoing issues, Ms. Washington does find it difficult to ambulate, walk up 7 and down stairs, and to sit for excessive periods of time. If more information is needed please contact Pueblo Family Physicians. 8 9 (AR at 765, 842, 847.) 10 2. The ALJ’s Evaluation Of FNP-C Prusinski’s Opinions 11 The ALJ found FNP-C Prusinski’s opinions unpersuasive. (Id. at 23.) The ALJ’s 12 full rationale was as follows: 13 The undersigned considered the statements of treatment provider Philip Prusinski, FNP-C, who listed some of the claimant’s impairments, and noted 14 that the claimant finds it difficult to ambulate, walk up and down stairs, and to sit for excessive periods. These statements are unpersuasive. While Mr. 15 Prusinski is a treatment provider, his wording indicates that the listed difficulties are a recitation of the claimant’s subjective complaints, as 16 opposed to Mr. Prusinski’s opinions. Regardless, while the undersigned has considered these statements as evidence, these statements are imprecise and 17 vague in that they do not include specific functional limitations, thus rendering them impossible to compare with the longitudinal record, as 18 described in the analysis of the Disability Determination Services consultant findings, above. 19 20 (Id., record citations omitted.) 21 3. The Parties’ Arguments 22 Plaintiff argues that “the ALJ does not adequately explain how the fact that F.N.P.- 23 C. Prusinski specified that Plaintiff ‘finds it difficult’ to perform the activities for excessive 24 periods of time necessarily translates to a recitation of Plaintiff’s subjective report where 25 the ALJ engages in no meaningful discussion as to whether the opinion was supported by 26 objective findings gathered through the course of F.N.P.-C. Prusinski’s examinations of 27 Plaintiff.” (Doc. 12 at 16-17.) Plaintiff further contends that “the ALJ’s rejection of the 28 opinion on the basis that his statements were imprecise and vague in that they did not 1 include specific functional limitations is legally erroneous where the ALJ failed to give an 2 adequate explanation supported by relevant case law.” (Id. at 17.) Plaintiff argues that if 3 the ALJ believed the opinion was vague, the ALJ had a duty to “develop and clarify the 4 record.” (Id. at 17-18.) In the alternative, Plaintiff argues that the ALJ did not consider 5 the “supportability and consistency factors” because the ALJ stated that it was “impossible 6 for her to determine whether F.N.P.-C. Prusinski’s opinion was consistent with the entirety 7 of the evidence” and did “not explain how she considered the extent to which F.N.P.-C. 8 Prusinski’s opinion was consistent with Dr. Giroux De Armendariz and P.A.-C. Neal’s 9 opinion concerning limitations in prolonged sitting, standing, and/or walking.” (Id. at 19- 10 20.) 11 The Commissioner disagrees and defends the sufficiency of the ALJ’s rationale for 12 discrediting the opinions of FNP-C Prusinski. (Doc 13 at 12-17.) First, the Commissioner 13 argues that the ALJ was not even required to consider FNP-C Prusinski’s opinion because 14 it “does not meet the definition of an opinion under the relevant regulations.” (Id. at 13.) 15 Alternatively, the Commissioner argues that the ALJ “properly evaluated Mr. Prusinski’s 16 opinion using the supportability and consistency criteria in the relevant regulations.” (Id.) 17 As for supportability, the Commissioner contends that “the ALJ reasonably found that Mr. 18 Prusinski’s opinion lacked support because the wording of the opinion indicated that ‘the 19 listed difficulties [were] a recitation of [Plaintiff’s] subjective complaints, as opposed to 20 Mr. Prusinski’s opinions.’” (Id.) As for consistency, the Commissioner argues that 21 “[a]lthough Mr. Prusinski indicated that Plaintiff found it ‘difficult to ambulate, walk up 22 and down stairs, and sit for excessive periods of time,’ he did not explain in what way 23 finding it ‘difficult’ to perform such tasks limited her abilities or how long of a period he 24 meant by ‘excessive periods of time.’ Because these terms are undefined, it is impossible 25 to determine whether Mr. Prusinski’s opinion is consistent with the signs and symptoms 26 recorded in the treatment and examination notes.” (Id. at 14-15, internal citations omitted.) 27 The Commissioner also summarizes FNP-C Prusinski’s treatment notes and contends they 28 are inconsistent with the assertions in the letter. (Id. at 14.) Finally, the Commissioner 1 argues that the ALJ had no duty to develop the record because such a duty arises only 2 “when ‘there is ambiguous evidence or when the record is inadequate to allow for the 3 proper evaluation of the evidence.’” (Id. at 15-17, quoting Ford, 950 F.3d at 1156.) 4 In reply, Plaintiff disputes the Commissioner’s contention that “FNP-C Prusinski’s 5 statement was not a medical opinion” given that he is an “acceptable medical source” and 6 indicated “impairment-related limitations or restrictions.” (Doc. 14 at 6.) Plaintiff also 7 argues that the Commissioner’s argument “should be rejected as a post-hoc rationale that 8 the ALJ herself did not provide.” (Id. at 7.) As for supportability, Plaintiff reiterates that 9 the ALJ included “no discussion as to whether the opinion was supported by objective 10 evidence but rather finds in an entirely conclusory manner that the opinion relied on 11 subjective reporting” and argues that the Commissioner’s discussion of FNP-C Prusinski’s 12 treatment findings “again should be rejected as post-hoc rationalizations that Defendant 13 may not use to correct the ALJ’s deficient consideration of the supportability factor.” (Id. 14 at 7-8.) Finally, as for consistency, Plaintiff argues that “FNP-C Prusinski’s limitations 15 clearly set restrictions of Plaintiff’s ability to perform physical activity necessary to 16 maintain fulltime employment. The fact that the extent of these limitations was not 17 expressly defined does not give the ALJ a basis to reject them outright when the record is 18 consistent with FNP-C Prusinski’s findings.” (Id. at 8-9.) 19 4. Analysis 20 As an initial matter, Plaintiff is correct that because the ALJ did not reference FNP- 21 C Prusinski’s treatment notes or suggest they failed to provide support for FNP-C 22 Prusinski’s opinions, the Court cannot rely on them as a basis to affirm the ALJ’s 23 supportability analysis. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th 24 Cir. 2009) (“Long-standing principles of administrative law require us to review the ALJ’s 25 decision based on the reasoning and factual findings offered by the ALJ—not post hoc 26 rationalizations that attempt to intuit what the adjudicator may have been thinking.”). 27 It is a closer question whether FNP-C Prusinski’s letter qualified as a “medical 28 opinion” and thus triggered the ALJ’s duty to evaluate it as such. A “medical opinion” is 1 defined by regulation as follows: 2 A medical opinion a statement from a medical source about what you can 3 still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the following abilities: . . . 4 (i) Your ability to perform physical demands of work activities, such as 5 sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as 6 reaching, handling, stooping, or crouching); (ii) Your ability to perform mental demands of work activities, such as understanding; remembering; 7 maintaining concentration, persistence, or pace; carrying out instructions; or 8 responding appropriately to supervision, co-workers, or work pressures in a work setting; (iii) Your ability to perform other demands of work, such as 9 seeing, hearing, or using other senses; and (iv) Your ability to adapt to 10 environmental conditions, such as temperature extremes or fumes. 11 20 C.F.R. § 404.1513(a)(2). Here, although FNP-C Prusinski’s letter purported to describe 12 certain functional imitations associated with Plaintiff’s conditions, it did not (as discussed 13 in more detail below) indicate that FNP-C Prusinski held any opinion with respect to those 14 functional limitations. 15 Nevertheless, even assuming the ALJ was required to treat the letter as a medical 16 opinion, the Court finds no harmful error in the ALJ’s resulting evaluation. The ALJ 17 addressed the supportability factor by stating that the “wording” of FNP-C Prusinski’s 18 opinion “indicates that the listed difficulties are a recitation of the claimant’s subjective 19 complaints, as opposed to Mr. Prusinski’s opinions.” (AR at 23.) This conclusion is 20 supported by substantial evidence. In the letter, FNP-C Prusinski stated that “Ms. 21 Washington does find it difficult” to ambulate, use the stairs, and sit. (Id. at 842.) This is 22 not the same thing as saying that FNP-C Prusinski personally observed or determined that 23 Plaintiff had such limitations. It was thus reasonable for the ALJ to conclude that the letter 24 merely reflected subjective complaints and not FNP-C Prusinski’s assessment. 25 As for the consistency factor, the ALJ concluded that FNP-C Prusinski’s 26 “statements are imprecise and vague in that they do not include specific functional 27 limitations, thus rendering them impossible to compare with the longitudinal record.” (AR 28 at 23.) Although expressed with less than ideal clarity, this was a permissible evaluation 1 of the consistency factor. FNP-C Prusinski offered no analysis of what “excessive periods” 2 should mean, nor did he indicate any specific limitations on walking or ambulating more 3 generally. (Id. at 765.) The ALJ explicitly contrasted FNP-C Prusinski’s opinions with 4 the opinions of other medical sources whom the ALJ deemed more credible. (Id. at 22- 5 23.) Those more-credible sources concluded, among other things, that Plaintiff could 6 “work at the less than light exertion level with occasional lower extremity pushing and 7 pulling operations, occasional postural activities other than no climbing of ladders, ropes, 8 or scaffolds, and avoiding concentrated exposure to extreme cold, extreme heat, wetness, 9 and humidity, and no exposure to hazards of heights and moving machinery.” (Id. at 22.) 10 The reasonable conclusion is that the ALJ found FNP-C Prusinski’s opinions unpersuasive 11 in part because of their inconsistency with these more-credible opinions. 12 Turning to Plaintiff’s final argument, the Court acknowledges there is some tension 13 between the claimant’s burden to prove she is disabled and the ALJ’s duty to develop the 14 record. Cf. Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir. 1998) 15 (“However, in so holding, we do not relieve Armstrong and other DIB claimants of their 16 ultimate burden to prove disability before expiration of disability insured status. 17 Armstrong must still prove he was disabled while he was insured. SSR 83–20 only requires 18 that the ALJ assist the claimant in creating a complete record.”). In any event, here the 19 ALJ did not have a duty to develop the record. “An ALJ’s duty to develop the record 20 further is triggered only when there is ambiguous evidence or when the record is inadequate 21 to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459- 22 60 (9th Cir. 2001). The record in this case is replete with medical evidence, including eight 23 medical opinions that the ALJ evaluated. There is no ambiguity or inadequacy in the record 24 that would suggest the ALJ lacked the ability to make an informed decision. Mayes, 276 25 F.3d at 460 (“The record before the ALJ was neither ambiguous nor inadequate to allow 26 for proper evaluation of the evidence. Substantial evidence supported the ALJ’s decision 27 that Mayes was not disabled.”). 28 … 1 C. Plaintiff’s Symptom Testimony 2 1. Standard Of Review 3 An ALJ must evaluate whether the claimant has presented objective medical 4 evidence of an impairment that “could reasonably be expected to produce the pain or 5 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) 6 (citations omitted). If so, “an ALJ may not reject a claimant’s subjective complaints based 7 solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” 8 Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Instead, the ALJ may “reject the 9 claimant’s testimony about the severity of [the] symptoms” only by “providing specific, 10 clear, and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488- 11 89 (9th Cir. 2015). In this analysis, the ALJ may look to “(1) ordinary techniques of 12 credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 13 statements concerning the symptoms, and other testimony by the claimant that appears less 14 than candid; (2) unexplained or inadequately explained failure to seek treatment or to 15 follow a prescribed course of treatment; and (3) the claimant’s daily activities.” 16 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citing Smolen v. Chater, 80 17 F.3d 1273, 1284 (9th Cir. 1996)). 18 2. The ALJ’s Evaluation Of Plaintiff’s Symptom Testimony 19 The ALJ provided the following evaluation of Plaintiff’s symptom testimony: 20 The claimant alleged, for example, that she has a difficult time walking, standing, sitting, or moving around due to her pain. She testified that even 21 walking 15 steps to the mailbox is painful. She noted that her arm still bothers in the wake of being broken. She testified that her right knee has 22 been giving out on her for over a year as of the hearing. She reported that she cannot lift anything over five pounds, and cannot sit or stand more than 23 10-15 minutes at a time. She testified that she is up all night due to her pain, and that her daughter helps her with everything. She reported eye blurriness 24 when looking at a computer screen for more than 20 minutes. She testified that she has fallen, and that she has a cane for when she goes out of the house, 25 which she uses to help with walking, though that it was not prescribed. She also testified that when she is sitting down, she props her feet up due to her 26 swelling and impairments. 27 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be 28 expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms 1 are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. 2 Medical record review 3 In line with the claimant's allegations, she was assessed with mild 4 degenerative changes of the bilateral knees including osteoarthritis and with swelling at times, and spinal imaging showed mild multilevel degenerative 5 disc disease including spondylosis and dextroscoliosis. These objective findings are consistent with some limitations. Consistent with the diagnostic 6 findings and the residual functional capacity assessed in this decision, the claimant’s objective clinical examinations have also failed to corroborate the 7 full extent of the alleged severity, limiting effects, and frequency of her condition. While the claimant has some positive findings, they are generally 8 limited to tenderness on palpation, spinal muscle spasms, spinal pain with range of motion, spinal tenderness, knee tenderness, and knee pain with 9 range of motion. Indeed, her gait, posture, stance, muscle strength, musculoskeletal range of motion, coordination, motor functioning, grip 10 strength, muscle bulk, deep tendon reflexes, and sensation were observed to be normal. At her June of 2020 consultative examination, she was noted as 11 not using an assistive device, and was able to stand, walk to the examination table, get onto, and sit on the examination table without assistance or 12 difficulty. Additionally, her vision was assessed in December of 2020 as 20/30 in the right eye and 20/25 in the left eye without glasses. While the 13 undersigned noted that at the consultative examination, her gait observed to be “mildly antalgic”, her lower extremity strength was minimally reduced to 14 4/5, and she had difficulty walking on her heels and toes and in tandem walking, with some unsteadiness noted, this was not observed at provider 15 examinations. She was positive for spinal muscle spasms, spinal pain with range of motion, spinal tenderness, knee tenderness, and knee pain with 16 range of motion. Further exacerbating her exertional limitations, she was diagnosed with morbid obesity, with a body mass index exceeding 45, as 17 well as type II diabetes mellitus. 18 Furthermore, her cardiovascular rate, cardiovascular rhythm, peripheral perfusion, heart sounds, heart function, respiratory functioning, and bowel 19 sounds were observed to be normal, and echocardiogram testing indicated normal left ventricular systolic function. Additionally, her lungs were clear 20 to auscultation, her respirations were non-labored, and she was described as well-developed and well-nourished. Finally, she was at times described as 21 doing well overall. 22 The claimant’s treatment history further illustrates the non-debilitating nature of her medical condition, as she reportedly improved with physical 23 therapy noting she was “at the point where she would be able to complete all tasks with minimal difficulty”. As well, there is information in the record that 24 draws into question the claimant's alleged reliance on an assistive device. While she testified she used a cane, the record fails to support the same. 25 Indeed, she was able to exercise for 4:10 minutes and achieved 6.02 METS. Her diabetes appears to be well controlled on medications. The undersigned 26 has also considered the claimant’s obesity noting the claimant reported seeing a nutritionist currently. The undersigned considered the potential 27 impacts of the claimant’s obesity in causing or contributing to her co-existing impairments in accordance with SSR 19-2p. However, there is scant 28 evidence of any specific or quantifiable impact on her cardiac, pulmonary, musculoskeletal, endocrine, or mental functioning due to obesity alone. 1 In sum, while the claimant was assessed with bilateral knee osteoarthritis, degenerative disc disease, diabetes, and morbid obesity, it was on other 2 occasions noted - in contradiction to the intensity of her allegations - that her gait, posture, stance, muscle strength, musculoskeletal range of motion, 3 coordination, motor functioning, grip strength, muscle bulk, deep tendon reflexes, sensation, heart function, peripheral perfusion, heart sounds, left 4 ventricular systolic function, and bowel sounds were normal, that she was well-developed and well-nourished, and that she was doing well overall. 5 Further, the record fails to support her allegations that she needed to elevate her legs to the extent alleged. 6 7 (AR at 19-21, record citations omitted.) 8 3. The Parties’ Arguments 9 Plaintiff argues that the ALJ “does not provide any meaningful discussion to support 10 her conclusion that Plaintiff’s statements were not consistent with the entirety of the 11 evidence, but rather immediately summarizes the medical evidence of the record in 12 determining that her examinations contradicted the intensity of her allegations.” (Doc. 12 13 at 21-23.) Plaintiff also argues the ALJ’s analysis was deficient “where the ALJ 14 impermissibly picks and chooses from the evidence she contends supports her conclusion 15 while ignoring all other evidence that conflicts with her findings.” (Id. at 23.) Plaintiff 16 further contends that the ALJ’s rationale for discrediting her symptom testimony was 17 flawed because the ALJ only considered “whether the objective evidence supports 18 Plaintiff’s allegations” and not “Plaintiff’s symptoms and activities of daily living.” (Id. 19 at 24-25, citing AR at 315, 617.) Finally, Plaintiff challenges the ALJ’s finding about 20 Plaintiff’s need to elevate her legs as “legally erroneous where the ALJ provides no 21 explanation to support her findings.” (Id. at 25.) 22 The Commissioner defends the sufficiency of the ALJ’s reasoning, arguing that the 23 ALJ properly discredited Plaintiff’s symptom testimony based on (1) the ALJ’s review of 24 the objective medical evidence; (2) evidence that Plaintiff had lied about needing to use a 25 cane; (3) the fact that Plaintiff’s impairments responded well to prescribed treatment and 26 appeared to be controlled well by medication; and (4) the fact that “the majority of the 27 medical opinions and prior administrative medical findings in the record contradicted the 28 alleged extent of Plaintiff’s limitations.” (Doc. 13 at 17-25.) 1 In reply, Plaintiff first challenges the Commissioner’s contention that objective 2 medical evidence can support discrediting her testimony. (Doc. 14 at 10.) Next, Plaintiff 3 reiterates that the “ALJ is required to consider the extent to which Plaintiff’s allegations 4 were consistent with her activities of daily living despite her symptoms, including that 5 Plaintiff reported throughout the record that her pain worsened with walking, lifting, going 6 up and down stairs, and sitting for long periods of time.” (Id. at 10-11.) Finally, Plaintiff 7 argues that the cane-related discussion in the Commissioner’s brief is a “post-hoc 8 rationalization that the ALJ did not find.” (Id.) 9 4. Analysis 10 The Court finds no harmful error in the ALJ’s evaluation of Plaintiff’s symptom 11 testimony. One of the ALJ’s proffered reasons for discounting Plaintiff’s testimony was 12 that it was inconsistent with the objective medical evidence in the record. Although this 13 may not serve as an ALJ’s sole reason for discounting a claimant’s symptom testimony, it 14 is a permissible consideration when (as here) it is coupled with other grounds for an adverse 15 credibility finding. Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (“Claimants like 16 Smartt sometimes mischaracterize [Ninth Circuit law] as completely forbidding an ALJ 17 from using inconsistent objective medical evidence in the record to discount subjective 18 symptom testimony. That is a misreading of [Ninth Circuit law]. When objective medical 19 evidence in the record is inconsistent with the claimant’s subjective testimony, the ALJ 20 may indeed weigh it as undercutting such testimony. We have upheld ALJ decisions that 21 do just that in many cases.”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) 22 (“While subjective pain testimony cannot be rejected on the sole ground that it is not fully 23 corroborated by objective medical evidence, the medical evidence is still a relevant factor 24 in determining the severity of the claimant’s pain and its disabling effects.”). 25 The ALJ’s finding of inconsistency with the objective medical evidence was 26 supported by substantial evidence. To provide one example, the ALJ noted that although 27 Plaintiff “reported eye blurriness when looking at a computer screen for more than 20 28 minutes,” Plaintiff’s “vision was assessed in December of 2020 as 20/30 in the right eye 1 and 20/25 in the left eye without glasses.” (AR at 20.) Both of these assertions are, as a 2 factual matter, supported by substantial evidence. (Id. at 314 [Plaintiff’s December 2019 3 function report: “eyes get blurred when looking at a computer screen for more than 20 4 minutes”]; id. at 508 [December 2019 medical note, indicating “normal” eyes]; id. at 607 5 [December 2019 medical note, indicating same]; id. at 707 [June 2020 medical note, 6 indicating same]; id. at 856 [December 2020 medical note: “The patient was presented to 7 the clinic with 20/30 vision in the right eye and 20/25 in the left without glasses. Intraocular 8 pressure was normal in both eyes. Anterior segment findings were normal in both eyes. 9 Dilated internal examination showed normal optic nerve health and retinal findings with 10 no diabetic retinopathy.”].) It was rational for the ALJ to view this objective medical 11 evidence as inconsistent with Plaintiff’s testimony. 12 As another example, the ALJ noted that although Plaintiff “testified that even 13 walking 15 steps to the mailbox is painful,” that “she cannot lift anything over five 14 pounds,” and that she “cannot sit or stand more than 10-15 minutes at a time,” the objective 15 medical evidence showed that, “[w]hile the claimant has some positive findings, they are 16 generally limited to tenderness on palpation, spinal muscle spasms, spinal pain with range 17 of motion, spinal tenderness, knee tenderness, and knee pain with range of motion. Indeed, 18 her gait, posture, stance, muscle strength, musculoskeletal range of motion, coordination, 19 motor functioning, grip strength, muscle bulk, deep tendon reflexes, and sensation were 20 observed to be normal.” (Id. at 20.) The ALJ’s assertions on these points are, as a factual 21 matter, supported by substantial evidence. (Id. at 43 [Plaintiff’s hearing testimony: “even 22 . . . walking 15 steps to the mailbox is painful”]; id. 320 [Plaintiff’s function report, 23 identifying “lift over 5 lbs” and “stand longer than 10 to 15 minutes at a time” as things 24 “you can’t do now”]; id. at 514 [November 2019 medical note: “Musculoskeletal: Normal. 25 Visual overview of all four extremities is normal.”]; id. at 607 [December 2019 medical 26 note: “Musculoskeletal: Normal ROM, no tenderness, no swelling, no deformity, No signs 27 of compartment syndrome.”]; id. at 673-74 [January 2020 medical note: “General/bilateral: 28 Musculoskeletal system: normal.”].) It was rational for the ALJ to view this objective 1 medical evidence as inconsistent with Plaintiff’s testimony. 2 Another of the ALJ’s reasons for discrediting Plaintiff’s symptom testimony was 3 that she had made false claims about cane usage. (Id. at 21 [“[T]here is information in the 4 record that draws into question the claimant’s alleged reliance on an assistive device. 5 While she testified she used a cane, the record fails to support the same.”].) This, too, 6 qualifies as a specific, clear and convincing reason under Ninth Circuit law for discrediting 7 a claimant’s symptom testimony. See, e.g., Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th 8 Cir. 1999) (concluding that “the ALJ did offer clear and convincing reasons for rejecting 9 Verduzco’s testimony” where “the ALJ noted that the appellant had walked slowly and 10 used a cane at the hearing, although none of his doctors had ever indicated that he used or 11 needed to use an assistive device in order to walk” and “two doctors had specifically noted 12 that the appellant did not need such a device”); Donathan v. Astrue, 264 F. App’x 556, 558 13 (9th Cir. 2008) (concluding that “the ALJ provided clear and convincing reasons for 14 rejecting Donathan’s subjective allegations” where the ALJ “offered several reasons 15 supporting the adverse credibility determination, including . . . inconsistencies regarding 16 Donathan’s need for use of a cane or scooter”); Doyle v. Comm’r of Soc. Sec. Admin., 2022 17 WL 4354608, *6 (D. Ariz. 2022). 18 The ALJ’s conclusions on this point were supported by substantial evidence. 19 During the hearing, Plaintiff testified: “I do have a cane. . . . The doctor did not prescribe 20 it, so I had to get one on my own. . . . I use it to help in assisting me with walking, if I need 21 to walk to the car or if I go to the store with my daughter and to—you know, things of that 22 nature.” (AR at 44-45.) Similarly, in her function report, Plaintiff checked a box indicating 23 that she used a cane and wrote: “I have a cane that a friend gave me.” (Id. at 319.) 24 However, on July 24, 2019—about a week before the alleged onset date—Plaintiff did not 25 use a cane when completing a 4 minute, 10 second stress test on a treadmill. (Id.at 492.) 26 Similarly, in a June 2022 medical record, a consultative examiner wrote that Plaintiff “does 27 not use any assistive device” and could “stand, walk to the examination table, [and] get 28 onto and sit on the examination table without assistance and without difficulty.” (Id. at 1 707.) The ALJ’s decision also contains citations to many other medical records from the 2 period of alleged disability in which Plaintiff was observed exhibiting a “normal” gait. 3 (See, e.g., id. at 749 [February 2020: “normal posture and gait”].) Although not all of these 4 medical records are cited in the specific portion of the ALJ’s decision discussing the cane- 5 usage issue, a reviewing court considers the agency’s decision as a whole, “[l]ooking at all 6 the pages of the ALJ’s decision,” when determining whether substantial evidence supports 7 the decision. Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th Cir. 2022). On this record, it 8 was rational for the ALJ to conclude that Plaintiff had made inaccurate or exaggerated 9 statements regarding her cane usage and to discount her credibility on that basis. See also 10 Tommasetti, 533 F.3d at 1039 (“The ALJ may consider . . . ordinary techniques of 11 credibility evaluation, such as . . . other testimony by the claimant that appears less than 12 candid . . . .”) (citation omitted); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) 13 (identifying a “tendency to exaggerate” as a “specific and convincing reason[] . . . for 14 discrediting [a claimant’s] testimony”). 15 Because the ALJ identified multiple clear and convincing reasons, supported by 16 substantial evidence, for discrediting Plaintiff’s symptom testimony, it is unnecessary to 17 resolve Plaintiff’s objections to the additional rationales the ALJ offered for discrediting 18 her testimony. Any error as to those additional rationales was harmless. See, e.g., Molina 19 v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (“[S]everal of our cases have held that 20 an ALJ’s error was harmless where the ALJ provided one or more invalid reasons for 21 disbelieving a claimant’s testimony, but also provided valid reasons that were supported 22 by the record.”); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th 23 Cir. 2008) (“Because we conclude that two of the ALJ’s reasons supporting his adverse 24 credibility finding are invalid, we must determine whether the ALJ’s reliance on such 25 reasons was harmless error. . . . [T]he relevant inquiry in this context is not whether the 26 ALJ would have made a different decision absent any error, it is whether the ALJ’s decision 27 remains legally valid, despite such error. . . . Here, the ALJ’s decision finding Carmickle 28 less than fully credible is valid, despite the errors identified above.”). 1 Accordingly, 2 IT IS ORDERED that the decision of the ALJ is affirmed. The Clerk shall enter 3 || judgment accordingly and terminate this action. 4 Dated this 20th day of September, 2023. 5 fT-L "Dominic W. Lanza 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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