1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIBEL O., Case No.: 23-cv-2029-SBC

12 Plaintiff,

ORDER AFFIRMING FINAL

13 v. DECISION OF THE

COMMISSIONER OF SOCIAL

14 LEE DUDEK, ACTING

SECURITY

COMMISSIONER OF SOCIAL

15 SECURITY, 16 Defendant. 17 18 On November 2, 2023, Plaintiff Maribel O.1 commenced this action against 19 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, for judicial review 20 under 42 U.S.C. § 405(g) of a final adverse decision for a period of disability and disability 21 insurance benefits. (ECF No. 1.)2 On November 20, 2023, Plaintiff consented to the 22 23 24 1 The Court refers to Plaintiff using only her first name and last initial pursuant to the 25 Court’s Civil Local Rules. See S.D. Cal. Civ. R. 7.1(e)(6)(b). 26 2 Lee Dudek is now the Acting Commissioner of Social Security and is automatically 27 1 undersigned’s jurisdiction to conduct all proceedings in this case. (ECF No. 6.)3 Defendant 2 filed the Administrative Record on January 2, 2024. (ECF No. 9.) Plaintiff filed a Merits 3 Brief on March 18, 2024. (ECF No. 13.) Defendant filed an Opposition to Plaintiff’s Merits 4 Brief on April 26, 2024. (ECF No. 17.) 5 For the following reasons, the final decision of the Commissioner is AFFIRMED. 6 I. BACKGROUND 7 A. Factual and Procedural History 8 Plaintiff, who was born in 1963, previously held employment as a hairstylist and 9 machine operator. (AR 39, 41, 270.)4 On or about October 16, 2019, Plaintiff filed an 10 application for disability insurance benefits under the Social Security Act. (AR 231-39.) 11 Plaintiff alleged that she had been disabled since February 1, 2019, due to breast cancer; 12 sciatica nerve damage; carpal tunnel pain; neuropathy; back, knee, neck, and leg pain; and 13 colitis. (AR 268-70.) Plaintiff’s applications were denied on initial review and again on 14 reconsideration. (AR 78-82, 84-89.) An administrative hearing was conducted on 15 September 13, 2022, by Administrative Law Judge (“ALJ”) Andrew Verne. (AR 32.) On 16 November 10, 2022, the ALJ issued a decision and concluded that Plaintiff was not 17 disabled from February 1, 2019, through the date of the decision. (AR 20-27.) Plaintiff 18 requested a review of the ALJ’s decision; the Appeals Council denied the request on 19 September 15, 2023. (AR 8-10.) Plaintiff then commenced this action pursuant to 42 U.S.C. 20 § 405(g). 21 22 3 The United States has informed the Court of its general consent to Magistrate Judge 23 jurisdiction in cases of this nature. See S.D. Cal. Gen. Order No. 707 (Apr. 12, 2019). 24 4 “AR” refers to the Administrative Record filed on January 2, 2024. (ECF No. 9.) 25 The Court’s citations to the AR use the page references on the original document rather 26 than the page numbers designated by the Court’s Case Management/Electronic Case Filing system (“CM/ECF”). For all other documents, the Court’s citations are to the page numbers 27 1 B. ALJ’s Decision 2 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 3 evaluation process. See 20 C.F.R. § 404.1520; see also Tackett v. Apfel, 180 F.3d 1094, 4 1098-99 (9th Cir. 1999) (describing five steps). The ALJ determined at step one that 5 Plaintiff had not engaged in substantial gainful activity since February 1, 2019, the alleged 6 onset date. (AR 22.) The ALJ noted that although Plaintiff worked after the alleged 7 disability onset date, this work activity did not rise to the level of substantial gainful 8 activity. (Id.) The ALJ also noted that Plaintiff collected unemployment through the third 9 quarter of 2021. (Id.) At step two, the ALJ found that Plaintiff’s severe impairments 10 consisted of degenerative disc disease and carpal tunnel syndrome; he determined that 11 Plaintiff’s medically determinable impairments of depression and anxiety were not severe. 12 (AR 22-23.) The ALJ determined at step three that Plaintiff did not have an impairment or 13 combination of impairments that met or medically equaled a listed impairment. (AR 24.) 14 The ALJ found that Plaintiff had the residual functional capacity to perform:

15 [L]ight work as defined in [20 C.F.R. § 404.1567(b)] except that [Plaintiff] 16 can occasionally climb ramps, stairs, ropes, ladders[,] and scaffolds. [Plaintiff] has no balance limitations. [Plaintiff] can occasionally stoop, kneel, 17 crouch[,] and crawl. She can bilaterally handle and finger frequently. Light 18 work involves lifting no more than 20 pounds at a time, with frequent lifting or carrying of objects weighing up to 10 pounds, as well as sitting, standing[,] 19 and walking for 6 hours in an 8-hour workday with normal breaks. 20 21 (Id.) 22 At step four, the ALJ determined that Plaintiff could perform her past relevant work 23 as a hair stylist and assembly press operator. (AR 26.) Therefore, the ALJ concluded that 24 Plaintiff had not been under a disability from February 1, 2019, through the date of his 25 decision. (AR 27.) 26 /// 27 /// 1 C. Disputed Issues 2 Plaintiff asserts two grounds for reversal: (1) the ALJ’s step two determination that 3 Plaintiff had a non-severe mental impairment was not supported by substantial evidence 4 and (2) the ALJ erroneously rejected Plaintiff’s subjective symptom testimony. (Pl.’s Br., 5 ECF No. 13 at 4-15.) 6 II. LEGAL STANDARDS 7 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek 8 judicial review of a final agency decision of the Commissioner. 42 U.S.C. § 405(g). The 9 scope of judicial review is limited, however, and a decision denying benefits will be set 10 aside “only if is not supported by substantial evidence or is based on legal error.” Ferguson 11 v. O’Malley, 95 F.4th 1194, 1199 (9th Cir. 2024) (citations omitted). Substantial evidence 12 means “‘more than a mere scintilla but less than a preponderance; it is such relevant 13 evidence as a reasonable mind might accept as adequate to support a conclusion.’” 14 Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (quoting Andrews v. Shalala, 53 15 F.3d 1035, 1039 (9th Cir. 1995)); see also Biestek v. Berryhill, 587 U.S. 97, 103, 139 S. 16 Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (“[W]hatever the meaning of ‘substantial’ in 17 other contexts, the threshold for . . . evidentiary sufficiency [under the substantial evidence 18 standard] is not high.”). The court must consider the entire record, including the evidence 19 that supports and detracts from the Commissioner’s conclusions. Desrosiers v. Sec’y of 20 Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). If the evidence supports more 21 than one rational interpretation, the court must uphold the ALJ’s decision. Burch v. 22 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 23 2020). The district court may affirm, modify, or reverse the Commissioner’s decision. 42 24 U.S.C. § 405(g). The matter may also be remanded to the Social Security Administration 25 for further proceedings. Id. 26 /// 27 /// 1 III. DISCUSSION 2 A. ALJ’s Evaluation of Plaintiff’s Mental Impairments at Step Two 3 Plaintiff argues that the ALJ improperly evaluated the medical evidence in 4 determining that Plaintiff’s mental impairments were not severe. (Pl.’s Br., ECF No. 13 at 5 4-8.) Defendant counters that substantial evidence supports the ALJ’s findings. (Def.’s 6 Opp’n, ECF No. 17 at 4-7.) The Court agrees with Defendant that the ALJ’s evaluation of 7 Plaintiff’s mental impairments at step two is supported by substantial evidence. 8 1. Applicable standards 9 At step two in the sequential evaluation, the Social Security Administration (“SSA”) 10 considers the medical severity of the claimant’s impairment. 20 C.F.R. § 11 404.1520(a)(4)(ii). To be found disabled, a disability claimant must have a medically 12 determinable physical or mental impairment or combination of impairments that is severe. 13 Id. A “medically determinable” physical or mental impairment “must be established by 14 objective medical evidence from an acceptable medical source.” Id. § 404.1521. Once a 15 medically determinable impairment is established, the SSA decides whether the 16 impairment or combination of impairments is “severe.” Id. A severe impairment is one 17 “which significantly limits [the] physical or mental ability to do basic work activities[.]” 18 Id. § 404.1520(c). “Basic work activities” include the abilities and aptitudes necessary to 19 perform most jobs, such as (1) physical functions such as walking, standing, sitting, lifting, 20 pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and 21 speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of 22 judgment; (5) responding appropriately to supervision, co-workers, and usual work 23 situations; and (6) dealing with changes in a routine work setting. Id. § 404.1522. 24 When an applicant for disability benefits claims a mental impairment, the ALJ must 25 employ the special technique described in 20 C.F.R. § 404.1520a to rate the degree of 26 functional limitation resulting from the impairment. See 20 C.F.R. § 404.1520a(a), (b)(2). 27 A five-point scale (none, mild, moderate, marked, and extreme) is used to rate the degree 1 of functional limitation in four broad functional areas: (1) understand, remember, or apply 2 information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) 3 adapt or manage oneself. Id. § 404.1520a(c)(3)-(4).5 After rating the degree of functional 4 limitation, the ALJ determines the severity of the mental impairment. Id. § 404.1520a(d). 5 If the degree of limitation is rated as “none” or “mild,” the ALJ will generally conclude 6 that the impairment is not severe, unless the evidence otherwise indicates that there is more 7 than a minimal limitation on the claimant’s ability to do basic work activities. Id. § 8 404.1520a(d)(1). 9 2. ALJ’s analysis of the severity of Plaintiff’s mental impairments 10 In making his step two severity determination, the ALJ conducted the four-part 11 special technique described above to rate the degree of functional limitations resulting from 12 Plaintiff’s medically determinable impairments of depression and anxiety. (AR 22-23.) As 13 discussed in further detail below, he found that Plaintiff had only “mild” limitations in each 14 of the four broad functional areas. (AR 23.) The ALJ concluded that “[b]ecause [Plaintiff’s] 15 medically determinable mental impairments cause no more than ‘mild’ limitation in any of 16 the functional areas and the evidence does not otherwise indicate that there is more than a 17 minimal limitation in [Plaintiff’s] ability to do basic work activities, they are nonsevere[.]” 18 (Id. (citation omitted).) 19 3. Plaintiff’s medical records relating to depression and anxiety 20 On September 17, 2019, Plaintiff presented to physician’s assistant Jose L. Ramirez 21 with complaints of multiple physical ailments and depression. (AR 392.) She was assessed 22 with moderate recurrent major depression, provided with a referral to psychology, and 23 prescribed Sertraline HCI, an anti-depressant. (AR 395.) On January 22, 2020, Plaintiff 24

25 26 5 These four functional areas are known as the “paragraph B” criteria due to the manner in which they are categorized in the listing of impairments. See 20 C.F.R. Pt. 404, 27 1 sought to establish care with primary care physician Jorge Otanez Cervantes, M.D.. (AR 2 420.) Dr. Otanez Cervantes conducted a psychiatric assessment, found Plaintiff’s Patient 3 Health Questionnaire–9 (“PHQ–9”) and Generalized Anxiety Disorder–7 (“GAD–7”) 4 scores to be “high,” and indicated that Plaintiff had admitted to suicidal ideation without 5 attempt. (AR 421-23.) The doctor noted that Plaintiff had an upcoming appointment with 6 a psychologist. (AR 423.) 7 On January 27, 2020, Plaintiff underwent a Psychology Initial Assessment with 8 Janet Ratniewski, Ph.D. (AR 417.) Dr. Ratniewski conducted PHQ–9, GAD–7, and 9 AUDIT tests and assessed Plaintiff with moderate recurrent major depression and post- 10 traumatic stress disorder. (AR 418.) According to Plaintiff’s mental status examination, 11 she was not a danger to herself or others, and had cognition within normal limits, 12 appearance within normal limits, anxious and depressed mood and affect, and behavior 13 within normal limits. (Id.) The psychologist recommended that Plaintiff receive a nine- 14 month course of individual therapy, including cognitive behavioral therapy. (Id.) Dr. 15 Ratniewski also wrote a “To Whom It May Concern” letter indicating that Plaintiff needed 16 an emotional support animal. (AR 399.) Plaintiff attended a cognitive behavioral therapy 17 session on February 17, 2020, (see AR 415-16), but does not appear to have attended any 18 additional sessions until December 7, 2020 and November 10, 2021. (AR 451, 462.)6 Prior 19 to her December 7, 2020 therapy session, Plaintiff had a telephonic consultation with Dr. 20 Otanez Cervantes on November 23, 2020, during which she requested a prescription refill 21 for Sertraline, which the doctor provided. (AR 439-40.) 22 23 24 25 6 The record does not contain notes of Plaintiff’s December 7, 2020, and November 26 10, 2021 visits. Rather, the record simply reflects that Plaintiff had telephone appointments with Dr. Ratniewski on these dates and that Plaintiff’s diagnosis remained “major 27 1 The record contains no further evidence of any mental health treatment. On February 2 23, 2022, Dr. Ratniewski discharged Plaintiff from care after Plaintiff failed to return for 3 scheduled appointments or ended treatment against provider advice. (AR 470.) 4 4. Analysis 5 Plaintiff contends that the ALJ ignored her PHQ–9 and GAD–7 scores, which 6 demonstrated moderately severe depression and moderate anxiety, respectively, as well as 7 records indicating that she presented with symptoms of anxiety and depression, was 8 prescribed an anti-depressant, and attended psychological counseling and therapy, in 9 making his step two determination that her mental impairments were not severe. (Pl.’s Br., 10 ECF No. 13 at 4-5.) To determine whether an ALJ’s analysis at step two was proper, the 11 Court must consider whether substantial evidence supports the ALJ’s determination. Webb 12 v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005); see also Sandgathe, 108 F.3d at 980 13 (defining substantial evidence as “‘more than a mere scintilla but less than a 14 preponderance; it is such relevant evidence as a reasonable mind might accept as adequate 15 to support a conclusion.’”). 16 The ALJ in this case utilized the four-part special technique described above to rate 17 the degree of functional limitations resulting from Plaintiff’s medically determinable 18 impairments of depression and anxiety. (AR 22-23.) First, in finding that Plaintiff had only 19 a mild limitation in her ability to understand, remember, or apply information, the ALJ 20 explained that the record reflected that Plaintiff was able to “count change, handle a savings 21 account[,] and use a checkbook/money order.” (AR 23, citing AR 309.) The ALJ further 22 noted that Plaintiff was able to shop using a computer and demonstrated normal cognition 23 on a mental status examination. (Id., citing AR 309, 418.) Substantial evidence in the record 24 supports the ALJ’s determination. 25 Second, in finding that Plaintiff had only a mild limitation in her ability to interact 26 with others, the ALJ noted that Plaintiff was able to “interact with others sufficiently to 27 acquire goods and services, as well as successfully coordinate medical needs with health 1 care providers for relevant healthcare.” (Id., citing AR 309, 407-24.) He also observed that 2 Plaintiff was able to spend time with her sister and had “not demonstrated any difficulty 3 communicating with medical providers and demonstrated excellent engagement on exam.” 4 (Id., citing AR 310, 415.) Substantial evidence in the record supports this finding. 5 Third, the ALJ considered Plaintiff’s ability to concentrate, persist, or maintain pace, 6 and concluded that Plaintiff had only a mild limitation. (Id.) The basis for the ALJ’s 7 determination was that Plaintiff’s mental status examination showed that she had “normal 8 cognition, normal behavior[,] and no impairment in her thought content.” (Id., citing AR 9 415, 418.) This finding is supported by substantial evidence in the record. 10 Fourth, the ALJ evaluated Plaintiff’s ability to adapt or manage herself and found 11 that Plaintiff had only a mild limitation. (Id.) The ALJ noted that Plaintiff was able to 12 prepare simple meals and take care of her dogs, including feeding and washing them. (Id., 13 citing AR 307-08.) The ALJ further observed that Plaintiff’s examination notes described 14 Plaintiff as having a “normal, well appearing, awake[,] and alert appearance.” (Id., citing 15 AR 408, 412, 421.) These findings are supported by substantial evidence in the record. 7 16 Plaintiff’s reliance on her PHQ–9 score of 18 and her GAD–7 score of 12, assessed 17 on January 22, 2020, (see AR 418), to support her argument that her mental impairments 18

19 20 7 The ALJ also stated that the record indicated that Plaintiff had “the ability to regulate her emotions, control her behavior, and maintain her well-being,” and that Plaintiff could 21 “set realistic goals, make plans independently of others, maintain[] personal hygiene and 22 attire, and be aware of normal hazards and take appropriate precautions.” The ALJ cites a number of records for these statements, including AR 407, 418 and 423. While the Court 23 notes that the records cited by the ALJ do not fully support these statements, any overreach 24 constitutes harmless error and therefore does not alter the conclusion because the ALJ cited sufficient substantial evidence to support his finding that Plaintiff had only a mild 25 limitation in adapting or managing herself. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 26 (9th Cir. 2008) (“harmless error . . . exists when it is clear from the record that the ALJ’s error was inconsequential to the ultimate nondisability determination”) (internal quotation 27 1 are severe, is unavailing. (Pl.’s Br., ECF No. 13 at 4.)8 Plaintiff’s PHQ–9 score of 18, 2 reflecting “moderately severe” depression, and GAD–7 score of 12, reflecting “moderate” 3 anxiety, does not mean that her depression and anxiety are “moderately severe” or 4 “moderate” for purposes of evaluating her disability claim. Rather, evaluating the severity 5 of her mental impairments for purposes of her disability claims depends on the degree of 6 functional limitation resulting from the mental impairment on the claimant’s ability to 7 work. See 20 C.F.R. § 404.1520a(c), (d); see also Mary G. v. Kijakazi, Case No. CV 23- 8 01972-DFM, 2023 WL 6304853, at *5 (C.D. Cal. Sept. 27, 2023) (“[Plaintiff’s] PHQ and 9 GAD scores only indicate what Plaintiff (and the ALJ) already notes, that she suffers from 10 major depressive order and anxiety; they do not speak to whether or not Plaintiff has . . . 11 limitations in the areas required to satisfy paragraph B.”) (internal quotations and citation 12 omitted). 13 Plaintiff further argues that the ALJ prematurely terminated the inquiry into her 14 mental impairments at step two of the disability determination. (Pl.’s Br., ECF No. 13 at 15 6-7.) She correctly observes that step two is used as a “de minimis screening device [used] 16 to dispose of groundless claims.” (Id., citing Webb, 433 F.3d at 687.) Her reliance on the 17 Ninth Circuit’s decision in Glanden v. Kijakazi, 86 F.4th 838 (9th Cir. 2023), however, is 18

19 20 8 The PHQ–9 and GAD–7 are “two mental health assessment tests . . . which assess depression and anxiety, respectively.” Choat v. Berryhill, No. 6:17-cv-00619-HZ, 2018 21 WL 2048332, *10 (D. Or. Apr. 30, 2018). PHQ–9 scores, which quantify nine criteria for 22 depression, are generally interpreted as follows: minimal depression (0-4); mild depression (5-9); moderate depression (10-14); moderately severe depression (15-19); and severe 23 depression (20-27). Salina S. v. Kijakazi, Case No. 1:20-CV-00515-REP, 2022 WL 24 3700880, *5 n.4 (D. Idaho Aug. 25, 2022) (citation omitted). On the GAD–7, a score in the range 0-4 indicates minimal anxiety and a score of 5-9 indicates mild anxiety. Jeremy 25 S. v. O’Malley, Case No.: 23-cv-00184-AJB-JLB, 2024 WL 343179, at *10 (S. D. Cal. Jan. 26 29, 2024). “Scores of 5, 10, and 15 are taken as the cut-off points for mild, moderate and severe anxiety, respectively.” Id. (citation omitted). 27 1 misplaced. In Glanden, the ALJ found that the plaintiff was not disabled during the relevant 2 period and denied his claim at step two without considering the remaining steps. Id. at 842. 3 Here, in contrast, the ALJ did not stop consideration of Plaintiff’s claim at step two, and 4 thus did not screen out Plaintiff’s disability claim as de minimis. As the Ninth Circuit noted, 5 it is “relatively rare” for an ALJ to deny a claim at step two, (see id. at 844), and the ALJ 6 did not do so here. Glanden is inapposite. Furthermore, step two is not meant to identify 7 the impairments that should be considered when determining a claimant’s RFC. Buck v. 8 Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). “In fact, ‘[i]n assessing RFC, the 9 adjudicator must consider limitations and restrictions imposed by all of an individual’s 10 impairments, even those that are not ‘severe.’’” Id. at 1049, citing SSR 96-8p, 1996 WL 11 374184, at *5 (July 2, 1996). Here, the ALJ’s decision reflects that he considered Plaintiff’s 12 depression and anxiety when formulating her RFC. (See AR 24-26.) 13 In sum, the ALJ supported his findings that Plaintiff’s mental impairments resulted 14 in only mild functional limitations with substantial evidence in the record. See Sandgathe, 15 108 F.3d at 980. He could therefore properly find that her mental impairments were not 16 severe. Plaintiff’s argument that the ALJ erred at step two is without merit. 17 B. ALJ’S Evaluation of Subjective Symptom Testimony 18 Plaintiff argues that the ALJ failed to articulate any clear and convincing reasons to 19 reject her subjective symptom testimony. (Pl.’s Br., ECF No. 13 at 9-15.) The Court 20 disagrees. 21 1. Applicable standards 22 It is up to the ALJ “to determine credibility, resolve conflicts in the testimony, and 23 resolve ambiguities in the record.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) 24 (quoting Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)). An 25 ALJ engages in a two-step analysis to determine the extent to which a claimant’s report of 26 symptoms must be credited. First, the ALJ must decide whether the claimant has presented 27 objective medical evidence of an underlying impairment which could reasonably be 1 expected to produce the pain or other symptoms alleged. Garrison v. Colvin, 759 F.3d 995, 2 1014 (9th Cir. 2014); see also SSR 16-3p, 2017 WL 5180304, at *3 (Oct. 25, 2017); 20 3 C.F.R. § 404.1529(b). Second, the ALJ evaluates the intensity and persistence of the 4 claimant’s symptoms to determine the extent to which they limit the ability to perform 5 work-related activities. SSR 16-3p, 2017 WL 5180304, at *3; 20 C.F.R. § 404.1529(c). 6 When the ALJ finds that a claimant is not malingering, “the ALJ can reject the claimant’s 7 testimony about the severity of her symptoms only by offering specific, clear and 8 convincing reasons for doing so.” Garrison, 759 F.3d at 1014-15; see also Lambert, 980 9 F.3d at 1277; Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022). This requires the ALJ 10 to “specifically identify the testimony [from a claimant] she or he finds not to be credible 11 and . . . explain what evidence undermines that testimony.” Lambert, 980 F.3d at 1277 12 (citing Treichler, 775 F.3d at 1102). 13 2. Plaintiff’s subjective symptom testimony 14 At the administrative hearing, Plaintiff testified that she last worked in 2019 as a hair 15 stylist. (AR 39.) Plaintiff initially collected unemployment but was no longer doing so at 16 the time of the hearing. (Id.)9 Plaintiff testified that she is no longer able to work as a hair 17 stylist because “I [was making] a lot of mistakes” such as “scissors [falling] out of my 18 hands” and “[t]hings . . . the customers don’t [like].” (AR 42.) Plaintiff stated that she also 19 cannot work because “I cannot stand up for a long time or sit for a long time, I have to 20 stand and sit. And I lose strength in my hands.” (Id.) Plaintiff continued, “I started having 21 a lot of problems with, like anxiety attacks. I didn’t know I was [having] anxiety attacks 22 until I started going to the doctor. I thought it was just me being nervous.” (AR 43.) Plaintiff 23 24 25 9 Receipt of unemployment benefits can undermine a claimant’s alleged inability to 26 work full-time as it demonstrates that the claimant is holding herself out as available for work. See Carmickle v. Comm’r, 533 F.3d 1155, 1161-62 (9th Cir. 2008) (citing Copeland 27 1 stated that medical providers had recommended the use of a cane but she did not use it 2 because “I don’t want to get to the point where I have to.” (Id.) 3 Plaintiff testified that she had “lots of surgeries in my left arm” during cancer 4 treatment “which give[s] me a lot of pain all the time.” (AR 44.) Plaintiff stated that she 5 “cannot carry anything heavy or . . . pick up things from the floor or things like that.” (Id.) 6 With respect to mental health treatment, Plaintiff testified that a therapist had prescribed 7 Sertraline, a Zoloft-type medication, that she had been taking “for many years.” (AR 44.) 8 Plaintiff has not been hospitalized for any mental health issues. (Id.) 9 3. ALJ’s findings regarding Plaintiff’s subjective symptom testimony 10 The ALJ determined that Plaintiff satisfied step one of the two-step analysis. (AR 11 25.) At the second step, the ALJ stated that “[Plaintiff]’s statements concerning the 12 intensity, persistence and limiting effects of these symptoms are not entirely consistent 13 with the medical evidence and other evidence in the record.” (Id.) The ALJ’s decision 14 contains several reasons for this finding, including the following: (1) “[symptoms] are 15 inconsistent with the longitudinal treatment record, which is very sparse,” including a “lack 16 of significant mental health treatment”; (2) “behavior, appearance and cognition presented 17 within normal limits” on a mental status examination; (3) “ability to perform a wide range 18 of activities such as caring for her dogs, preparing simple meals, shopping online and 19 managing her savings and checking accounts”; and (4) “the claimant has not been 20 hospitalized, and her care has been medication management in nature” including “refills of 21 Sertraline for depression.” (AR 25-26.) 22 As will be discussed below, these constitute specific, clear and convincing reasons 23 supported by substantial evidence in the record to discount Plaintiff’s pain testimony. 24 4. Analysis 25 a. Sparse treatment record 26 Under the regulations, the treatment received by a claimant for relief of pain or other 27 symptom is pertinent to evaluating the claimant’s symptom testimony. See 20 C.F.R. § 1 404.1529(c)(3)(v). Receiving only “minimal, conservative treatment” is a valid reason to 2 discredit a claimant’s symptom testimony. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 3 1999); see also Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of 4 ‘conservative treatment’ is sufficient to discount a claimant's testimony regarding severity 5 of an impairment.”) (citation omitted). Here, the treatment records for both Plaintiff’s 6 physical and mental impairments are sparse. With respect to her physical impairments, 7 Plaintiff saw physician’s assistant Jose Ramirez on September 17, 2019, with complaints 8 of bilateral carpal tunnel, lumbago with sciatica, irritable bowel syndrome, and depression. 9 (AR 392.) Plaintiff was referred for x-rays of her wrists, which were normal, and lumbar 10 spine, which showed minor disc narrowing at L4-S1. (AR 389, 396-97.) The record 11 contains no further medical evidence relating to her carpal tunnel or back symptoms. 12 Similarly, the record reflects that Plaintiff received very limited mental health care. As 13 discussed above, after her January 27, 2020 psychological initial assessment with Dr. 14 Ratniewski, Plaintiff attended only three cognitive behavioral therapy sessions on February 15 17, 2020, December 7, 2020, and November 10, 2021, (see AR 415-16, 451, 462), even 16 though Dr. Ratniewski had prescribed a nine-month course of treatment.10 17 Plaintiff’s sparse treatment record constituted a specific, clear, and convincing 18 reason for the ALJ to discredit her symptom testimony. 19 b. Normal findings on mental status examination 20 Although an ALJ may not disregard a claimant’ s testimony “solely because it is not 21 substantiated affirmatively by objective medical evidence,” (see Robbins v. Soc. Sec. 22

23 24 10 The Court acknowledges that Plaintiff initiated her mental health treatment just prior to the onset of the COVID-19 pandemic, but the record reflects that her therapist, Dr. 25 Ratniewski, conducted telephone appointments during this time. (AR 451, 462.) Therefore, 26 mental health treatment remained available to Plaintiff, and the Court surmises that Plaintiff did not attend therapy on a regular basis for reasons other than the restrictions 27 1 Admin., 466 F.3d 880, 883 (9th Cir. 2006)), the ALJ may consider whether the alleged 2 symptoms are consistent with the medical evidence as a factor in his evaluation. See 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). In this case, the ALJ observed 4 that during a mental status examination performed by Dr. Ratniewski on January 20, 2020, 5 Plaintiff’s mood was anxious and depressed but her behavior, appearance, and cognition 6 presented within normal limits. (AR 25, referring to AR 418.) The ALJ could properly rely 7 on Plaintiff’s normal mental status examination findings as a reason to discredit Plaintiff’s 8 testimony that she was unable to work due to her anxiety. 9 c. Daily activities 10 An ALJ may properly consider the claimant’s daily activities in evaluating 11 subjective symptom testimony. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); 12 see also 20 C.F.R. § 404.1529(c)(3)(i) (claimant’s daily activities relevant to evaluating 13 symptoms); SSR 16-3p, 2017 WL 5180304, at *7 (same). Daily activities may form the 14 basis of an adverse credibility determination when evidence concerning the claimant’s 15 daily activities contradicts his or her testimony, or when the activities meet the threshold 16 for full-time work. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also Smith v. 17 Kijakazi, 14 F.4th 1108, 1114 (9th Cir. 2021). “One does not need to be ‘utterly 18 incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 19 2001) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Nevertheless, “[e]ven 20 where [a claimant’s] activities suggest some difficulty functioning, they may be grounds 21 for discrediting the claimant’s testimony to the extent that they contradict claims of a totally 22 debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (citations 23 omitted) (superseded on other grounds by 20 C.F.R. § 404.1502(a) (2017)); see also 24 Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (“Engaging in daily activities that 25 are incompatible with the severity of symptoms alleged can support an adverse credibility 26 determination.”). 27 /// 1 Describing her daily activities, Plaintiff listed watching television, feeding and 2 washing her dogs, preparing basic meals, shopping online, handling her savings and 3 checking accounts, and talking to her sister. (AR 306-10.) Citing Plaintiff’s responses, the 4 ALJ concluded that Plaintiff’s “ability to perform a wide range of activities” undermined 5 Plaintiff’s statements about the “alleged intensity, persistence, and limiting effects” of her 6 symptoms. (AR 26.) The ALJ could reasonably conclude that Plaintiff’s daily activities 7 contradicted her testimony that she was incapable of working. 8 d. Use of medication 9 In assessing a claimant’s subjective symptoms, an ALJ may properly consider the 10 “type, dosage, effectiveness, and side effects of any medication” a claimant has taken to 11 alleviate her pain or other symptoms. 20 C.F.R. § 404.1529(c)(3)(iv); see also Warre v. 12 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can 13 be controlled effectively with medication are not disabling[.]”). Here, the ALJ noted 14 Plaintiff’s use of Sertraline for depression. (AR 25, 26.) The record reflects that Plaintiff 15 requested a refill of this medication from Dr. Otanez Cervantes on November 23, 2020, 16 (see AR 439), which indicates that Plaintiff found the medication to be effective. The ALJ’s 17 rationale that Plaintiff’s condition was stable with medication, without any negative side 18 effects indicated in the record, constituted a specific, clear, and convincing reason to 19 discredit her symptom testimony. 20 In sum, the Court finds that the ALJ set forth sufficient clear and convincing reasons 21 to discredit Plaintiff’s testimony regarding the functional limitations caused by her 22 symptoms. 23 /// 24 /// 25 /// 26 /// 27 /// 1 IV. CONCLUSION 2 For the reasons set forth above, the final decision of the Commissioner is 3 || AFFIRMED. The Clerk is directed to issue a judgment and close this case. 4 IT IS SO ORDERED. 5 Dated: February 19, 2025 6 By FA. 8 Hon.SteveB.Chu™” 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17