1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HENDERSON PETERS, No. 2:23-cv-01924 AC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL

SECURITY,

15 Defendant. 16

17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying his application for Supplemental Security Income (“SSI”) under 20 Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381-1383f.1 For the reasons that 21 follow, the court will DENY plaintiff’s motion for summary judgment and GRANT the 22 Commissioner’s cross-motion for summary judgment. 23 //// 24 //// 25

26 1 SSI is paid to financially needy disabled persons. 42 U.S.C. § 1382(a); Washington State Dept. of Social and Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 375 (2003) 27 (“Title XVI of the Act, § 1381 et seq., is the Supplemental Security Income (SSI) scheme of benefits for aged, blind, or disabled individuals, including children, whose income and assets fall 28 below specified levels . . .”). 1 I. PROCEDURAL BACKGROUND 2 Plaintiff applied for supplemental security income on December 22, 2020.2 3 Administrative Record (“AR”) 143, 291–316.3 Plaintiff alleged the disability onset date was July 4 16, 2020. Id. The applications were disapproved initially (AR 171-75), and on reconsideration 5 (AR 179-84). Plaintiff appeared with counsel Amanda Foss, and testified at a March 4, 2022 6 administrative proceeding before Administrative Law Judge (“ALJ”) Vincent A. Misenti. AR 7 30–64. Also appearing and testifying was impartial vocational expert Kathleen Macy-Powers. 8 AR 57–62. On April 26, 2022, the ALJ issued an unfavorable decision, finding plaintiff “not 9 disabled” under Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). 10 AR 14-25 (decision), 26-29 (exhibits). On March 20, 2023, the Appeals Council denied 11 plaintiff’s request for review, leaving the ALJ’s decision as the final decision of the 12 Commissioner of Social Security. AR 1-3 (decision). 13 Plaintiff filed this action on September 7, 2023. ECF No. 1; see 42 U.S.C. §§ 405(g), 14 1383c(3). The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 23. The 15 parties’ cross-motions for summary judgment, based upon the Administrative Record filed by the 16 Commissioner, have been fully briefed. ECF Nos. 16 (plaintiff’s summary judgment motion), 21 17 (Commissioner’s summary judgment motion), 22 (plaintiff’s reply). 18 II. FACTUAL BACKGROUND 19 Plaintiff was 39 years old at the time of his administrative hearing, is right-handed, and 20 has a high school education. AR 35-36. He injured his right elbow at work and underwent 21 surgery in May 2017. AR 37-38. Plaintiff stopped working following his elbow injury. AR 337. 22 Plaintiff alleged disability due to chronic back pain, right arm problems due to elbow surgery, 23

24 2 Plaintiff had previously filed a separate application for disability benefits, and on March 31, 2020 ALJ Jane Maccione presided over hearings on plaintiff’s challenge to the disapprovals. AR 25 65-110 (transcript). In an administratively final decision issued on July 15, 2020, plaintiff was 26 found “not disabled” under Title XVI the Social Security Act based on that prior application. AR 114–23; see AR 17, 116. See 42 U.S.C. § 1382c(a)(3)(A). In the application currently before the 27 court, this prior decision is not relevant because the ALJ found that plaintiff had successfully rebutted the presumption of continuing non-disability. AR 15. 28 3 The AR is electronically filed at ECF Nos. 13-3 to 13-10 (AR 1 to AR 456). 1 arthritis, nerve problems, and a bulging disc in his spine. Id. Plaintiff has work history as a 2 delivery worker and as an entertainment industry worker. AR 339. 3 III. LEGAL STANDARDS 4 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 5 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 6 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 7 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 8 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 9 Substantial evidence is “more than a mere scintilla,” but “may be less than a 10 preponderance.” Molina v. Astrue , 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such 11 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 12 Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While 13 inferences from the record can constitute substantial evidence, only those ‘reasonably drawn from 14 the record’ will suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation 15 omitted). 16 Although this court cannot substitute its discretion for that of the Commissioner, the court 17 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 18 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 19 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 20 court must consider both evidence that supports and evidence that detracts from the ALJ’s 21 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 22 “The ALJ is responsible for determining credibility, resolving conflicts in medical 23 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 24 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 25 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 26 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 27 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 28 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 1 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 2 evidence that the ALJ did not discuss”). 3 The court will not reverse the Commissioner’s decision if it is based on harmless error, 4 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 5 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 6 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 7 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 8 IV. RELEVANT LAW 9 Supplemental Security Income is available for every eligible individual who is “disabled.” 10 42 U.S.C. § 1381a. Plaintiff is “disabled” if she is “‘unable to engage in substantial gainful 11 activity due to a medically determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 12 482 U.S. 137, 140 (1987) (quoting identically worded provisions of 42 U.S.C. § 1382c(a)(3)(A). 13 The Commissioner uses a five-step sequential evaluation process to determine whether an 14 applicant is disabled and entitled to benefits. 20 C.F.R. § 416.920(a)(4); Barnhart v. Thomas, 540 15 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation process to determine 16 disability” under Title II and Title XVI). The following summarizes the sequential evaluation: 17 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not 18 disabled. If not, proceed to step two. 20 C.F.R. § 416.920(a)(4)(i), (b). 19 Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If 20 not, the claimant is not disabled. Id., § 416.920(a)(4)(ii), (c). 21 Step three: Does the claimant’s impairment or combination of impairments meet or equal 22 an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is disabled. If 23 not, proceed to step four. Id., § 416.920(a)(4)(iii), (d). 24 Step four: Does the claimant’s residual functional capacity make him capable of 25 performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Id., 26 § 416.920(a)(4)(iv), (e), (f). 27 //// 28 //// 1 Step five: Does the claimant have the residual functional capacity perform any other 2 work? If so, the claimant is not disabled. If not, the claimant is disabled. Id., 3 § 416.920(a)(4)(v), (g). 4 The claimant bears the burden of proof in the first four steps of the sequential evaluation 5 process. 20 C.F.R. § 416.912(a) (“In general, you have to prove to us that you are blind or 6 disabled”); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the sequential analysis, 7 the burden shifts to the Commissioner to demonstrate that the claimant is not disabled and can 8 engage in work that exists in significant numbers in the national economy.” Hill v. Astrue, 698 9 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 10 V. THE ALJ’s DECISION 11 The ALJ made the following findings: 12 1. [Step 1] The claimant has not engaged in substantial gainful activity since December 31, 2020, the application date (20 CFR 13 416.971 et seq.). 14 2. [Step 2] The claimant has the following severe impairments: right elbow arthritis, status post non-displaced fracture and arthroscopy, 15 possible small loose body in the right elbow, right elbow epicondylitis, complex regional pain of the right elbow and disc 16 bulges of the cervical spine (20 CFR 416.920(c)). 17 3. [Step 3] The claimant does not have an impairment or combination of impairments that meets or medically equals the 18 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). 19 4. [Preparation for Step 4] After careful consideration of the entire 20 record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 21 416.967(b) except the individual is right hand dominant and eroded as follows: right overhead reaching is occasional; all other reaching 22 is frequent; right handling and fingering are frequent; climbing ramps and stairs, balancing, stooping kneeling, crouching and crawling are 23 frequent; no climbing ladders and scaffolds; no work around unprotected heights; avoid concentrated exposure to moving 24 mechanical parts; and no commercial driving. 25 5. [Step 4] The claimant is unable to perform any past relevant work (20 CFR 416.965). 26 6. [Step 5] The claimant was born [in 1982] and was 38 years old, 27 which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963). 28 1 7. [Step 5, continued] The claimant has at least a high school education (20 CFR 416.964). 2 8. [Step 5, continued] Transferability of job skills is not an issue 3 because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not 4 the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). (20 CFR 416.968). 5 9. [Step 5, continued] Considering the claimant’s age, education, 6 work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant 7 can perform (20 CF'R 416.969 and 416.969(a)). 8 10. The claimant has not been under a disability, as defined in the Social Security Act, since December 31, 2020, the date the 9 application was filed (20 CFR 416.920(g)). 10 AR 17-25. 11 As noted, the ALJ concluded that plaintiff was “not disabled” under 12 Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 25. 13 VI. ANALYSIS 14 Plaintiff alleges the ALJ erred by failing to provide clear and convincing reasons for 15 discounting his subjective pain testimony. ECF No. 16 at 10. An ALJ performs a two-step 16 analysis to evaluate a claimant’s testimony. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 17 2014) (citations omitted). First, the ALJ must evaluate the objective medical evidence of the 18 underlying impairment which could be reasonably expected to cause the alleged symptoms or 19 pain, and second, if there is no evidence of malingering, the ALJ can reject the claimant’s 20 testimony as to the symptoms’ severity by offering specific, clear, and convincing reasons. Id. at 21 1015 (citations omitted). Inconsistent testimony and complaints inconsistent with plaintiff’s daily 22 activities are specific, clear, and convincing reasons to discount a claimant’s testimony. Frost v. 23 Berryhill, 727 Fed. Appx. 291, 295 (9th Cir. 2018) (citations omitted). Ninth Circuit cases “do 24 not require ALJs to perform a line-by-line exegesis of the claimant’s testimony, nor do they 25 require ALJs to draft dissertations when denying benefits.” Lambert v. Saul, 980 F.3d 1266, 26 1277 (9th Cir. 2020). Instead, an ALJ must make specific findings about a claimant’s allegations, 27 properly supported by the record and sufficiently specific to ensure a reviewing court that he did 28 //// 1 not “arbitrarily discredit” a claimant’s subjective testimony. See Thomas v. Barnhart, 278 F.3d 2 947, 958 (9th Cir. 2002). 3 In this case, plaintiff testified at the hearing he injured his right elbow at work and 4 underwent surgery in May 2017, but his right arm never straightened out. AR 37-38. In addition, 5 he has post operative nerve damage that causes pain in his right shoulder, pain in the middle of 6 his spine, and at times causes numbness in his arms and fingers. AR 38-39. He is seen for pain 7 management monthly and takes prescription pain medication daily, has undergone physical 8 therapy, and has received numerous injections. AR 40. Plaintiff reported that after he takes his 9 pain medication, his pain level is 7 out of 10 but he feels “drugged up.” AR 41. His symptoms 10 have remained mostly unchanged except he feels he has a little more strength sometimes. Id. 11 He testified the problems with his elbow have caused the issues in his cervical spine 12 because of his need to compensate for the weakness and pain in his right upper extremity. AR 43. 13 He stated his doctors have told him there are no surgeries they can do for his right arm or his 14 cervical spine. AR 42-43, 45. He describes having a sharp pain and finds it hard to lay down at 15 times. AR 43. He estimated he could sit twenty minutes, but then would have to stand up and 16 walk a little bit. He can stand up to a half hour, walk a half hour to forty minutes, and lift ten to 17 fifteen pounds. AR 46-47. He can reach overhead with his right arm, but it causes right shoulder 18 and elbow pain. AR 47. 19 Plaintiff testified that he relies on his left arm to perform most tasks including personal 20 care and household chores. AR 48. He uses his left arm to drive, text, and use email because it’s 21 less painful. AR 49. He also uses his left hand to operate zippers, buttons, and shoelaces. AR 22 50. Plaintiff reports that any activity he does with his right arm is painful. AR 50. He spends his 23 days trying to walk and exercise to improve his functioning but finds it difficult because of all the 24 pain medication. AR 51. He spends weekends with his children going to the park and watching 25 them play sports. AR 52-53. They will occasionally go to restaurants, and they go shopping at 26 stores as needed. AR 53-54. 27 The ALJ provided at least two satisfactory reasons for discrediting plaintiff’s subjective 28 pain testimony and concluding that plaintiff’s “statements concerning the intensity, persistence 1 and limiting effects of his symptoms are not entirely consistent with the medical evidence and 2 other evidence in the record[.]” 20 C.F.R. § 404.1529(c)(2) (objective medical evidence is useful 3 in assessing symptoms); Carmickle v. Comm’r Soc. Sec. Admin. 533 F.3d 1155, 1161 (9th Cir. 4 2008); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 5 (“Impairments that can be controlled effectively with medication are not disabling for purposes of 6 determining eligibility for SSI benefits”). AR 19. First, the ALJ found that plaintiff’s statements 7 were contradicted by the plaintiff’s “somewhat normal level of daily activity and interaction.” 8 AR 19, 20 C.F.R. § 404.1529(c)(3)(i); Smartt, 53 F.4th at 499 (“An ALJ may also consider 9 whether the claimant engages in daily activities inconsistent with the alleged symptoms”) 10 (quotation omitted). The ALJ specifically referenced plaintiff’s ability to drive, perform 11 household chores, use his cell phone, and cook. AR 19. 12 Daily activities, even if they are not commensurate with work activity, may demonstrate 13 that a plaintiff’s subjective complaints are exaggerated. See Valentine v. Astrue, 574 F.3d 685, 14 694 (9th Cir. 2009) (while daily activities “did not suggest [plaintiff] could return to his old job 15 [they] did suggest that [plaintiff’s] later claims about the severity of his limitations were 16 exaggerated”). During the hearing, the ALJ specifically questioned how plaintiff could drive 17 “one-handed,” when maneuvers such as making a U-turn require two hands. AR 50–51. See 18 Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009) (while daily activities “did not suggest 19 [Plaintiff] could return to his old job [they] did suggest that [Plaintiff’s] later claims about the 20 severity of his limitations were exaggerated”). The court finds that under the circumstances, the 21 ALJ’s reliance on plaintiff’s daily activities was sufficiently explained and provided a basis to 22 find plaintiff’s credibility undermined. 23 Second, the ALJ concluded that while plaintiff “alleges he has almost no use of his right 24 arm and elbow since his surgery in May 2017” those “allegations are inconsistent with the 25 objective clinical findings and absence of motor and sensory abnormalities of the right upper 26 extremity.” AR 19. In his analysis, the ALJ acknowledged the record of plaintiff’s complaints of 27 right upper pain, weakness, numbness, and tingling, and his consistent presentation with limited 28 neck and elbow range of motion with pain and tenderness. AR 20, citing AR 417, 432, 513–14, 1 554–56. However, the ALJ emphasized that plaintiff’s “musculoskeletal and neurological 2 findings” overall, were “unremarkable.” AR 20 (citing AR 417, 432 (“5/5” motor strength and 3 normal sensation in upper extremities), 513–14 (“mild strength deficits”), 554–56 (“shoulder 4 range of motion is unremarkable”; “Sensation is unremarkable”)). The Ninth Circuit has found 5 that evidence documenting intact limb strength demonstrates greater functionality than claimed. 6 Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996); see Meanel v. Apfel, 172 F.3d 1111, 1114 (9th 7 Cir. 1999) (lacking physical signs of inactivity upon examination was inconsistent with the 8 claimant’s allegation of being a “totally incapacitated individual”); Osenbrock v. Apfel, 240 F.3d 9 1157, 1166 (9th Cir. 2001) (noting “there is no evidence of disuse muscle atrophy” due to pain). 10 Further, while early examinations documented a mild reduction in motor strength and 11 sensation in plaintiff’s upper extremities (AR 458, 462, 466, 513–14), later examinations 12 generally documented full (5/5) motor strength and intact sensation in both his upper extremities, 13 as well as normal gait, ambulation without assistance, and negative Babinski (neurologic foot 14 reflex) signs, Hoffmann (neurologic finger reflex) signs, Clonus (reflex response to a muscle 15 stretch) test, Spurling (cervical and foraminal compression) test, and Ulnar, Median, and Adson 16 (upper limb nerve) Stretch Tests. AR 417–18, 425, 432, 437, 537, 571–72, 576–77, 588–89. The 17 ALJ reasonably found such clinical signs were inconsistent with plaintiff’s allegations of extreme 18 limitations. See Scianna v. Saul, 839 Fed. Appx. 135, 135 (9th Cir. 2021) (holding an 19 inconsistency with objective evidence can form a basis for rejecting an individual’s allegations) 20 (citing Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the 21 medical record is a sufficient basis for rejecting the claimant’s subjective testimony.”)). 22 As to plaintiff’s cervical spine complaints, the ALJ noted that plaintiff had an MRI of his 23 cervical spine December 17, 2021, which revealed no specific abnormality identified at the C2 to 24 C3, C6 to C7 and C7 to T1 levels. AR 20, 619-20. This imaging showed no impingement on the 25 thecal sac or nerve roots. Id. There was mild right neuroforaminal stenosis at the C3 to C4 level, 26 but no impingement of the thecal sac or nerve roots was identified, and there was mild posterior 27 disc bulge at the C4 to C6 level, but no impingement of the thecal sac or nerve roots was 28 identified. Id. Further, there was right paracentral bulging of the C5 to C6 disc, but no 1 | impingement of the thecal sac or nerve roots identified. Id. The ALJ reasonably concluded the 2 || medical evidence contradicted plaintiffs pain testimony. 3 Because the undersigned concludes that the ALJ provided at least two supported 4 || rationales for discrediting plaintiffs subjective pain testimony, the ALJ did not err. The ALJ 5 || reasonably supported his conclusions, and it is apparent that the ALJ did not arbitrarily discredit 6 || the plaintiff. Judgment must be entered in favor of the Commissioner. 7 VI. CONCLUSION 8 For the reasons set forth above, IT IS HEREBY ORDERED that: 9 1. Plaintiffs motion for summary judgment (ECF No. 16), is DENIED; 10 2. The Commissioner’s cross-motion for summary judgment (ECF No. 21), is 11 | GRANTED; 12 4. The Clerk of the Court shall enter judgment for defendant close this case. 13 SO ORDERED. 14 | DATED: September 17, 2024 ~ 15 Chthwen— Clare

ALLISON CLAIRE

16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10