Case 5:21-cv-01630-GJS Document 20 Filed 02/13/23 Page 1 of 9 Page ID #:462

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

SHARMA H.,1

11 Case No. 5:21-cv-01630-GJS Plaintiff 12 v. 13 MEMORANDUM OPINION AND KILOLO KIJAKAJI, Acting ORDER 14 Commissioner of Social Security, 15 Defendant. 16

17 18 I. PROCEDURAL HISTORY 19 Plaintiff Sharma H. (“Plaintiff”) filed a complaint seeking review of the 20 decision of the Commissioner of Social Security denying her application for 21 Supplemental Security Income (“SSI”). The parties filed consents to proceed before 22 the undersigned United States Magistrate Judge [Dkts. 11 and 12] and briefs [Dkts. 23 16 (“Pl. Br.”) & 19 (“Def. Br.”)] addressing a disputed issue in the case. The matter 24 is now ready for decision. For the reasons set forth below, the Court finds that this 25 matter should be affirmed. 26

27 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party in this case. 28 Case 5:21-cv-01630-GJS Document 20 Filed 02/13/23 Page 2 of 9 Page ID #:463

1 II. ADMINISTRATIVE DECISION UNDER REVIEW 2 Plaintiff filed an application for SSI on July 23, 2019, alleging disability 3 beginning July 4, 2018. [Dkt. 15, Administrative Record (“AR”) 15, 177-85.] 4 Plaintiff’s application was denied at the initial level of review and on 5 reconsideration. [AR 15, 96-99, 105-110.] A telephone hearing was held before 6 Administrative Law Judge Joel Tracy (“the ALJ”) on February 18, 2021. [AR 15, 7 31-52.] 8 On March 9, 2021, the ALJ issued an unfavorable decision applying the five- 9 step sequential evaluation process for assessing disability. [AR 15-27]; see 20 10 C.F.R. § 416.920(b)-(g)(1). At step one, the ALJ determined that Plaintiff had not 11 engaged in substantial gainful activity since the application date of July 23, 2019. 12 [AR 18.] At step two, the ALJ determined that Plaintiff has the following severe 13 impairments: bilateral knee, ankle and foot degenerative joint disease; bilateral hip 14 bursitis; lumbosacral spine strain; obesity; and fibromyalgia. [AR 18.] At step 15 three, the ALJ determined that Plaintiff does not have an impairment or combination 16 of impairments that meets or medically equals the severity of one of the 17 impairments listed in Appendix I of the Regulations. [AR 20]; see 20 C.F.R. Pt. 18 404, Subpt. P, App. 1. The ALJ found that Plaintiff has the residual functional 19 capacity (“RFC”) to perform sedentary work, as defined in 20 C.F.R. § 416.967(a), 20 except she is limited to occasional stooping, kneeling, crouching, balancing, and 21 climbing of ramps and stairs and she is precluded from crawling, climbing ladders, 22 ropes and scaffolds, working in close proximity to unprotected heights, and walking 23 on uneven terrain or slick, wet surfaces. [AR 21.] At step four, the ALJ determined 24 that Plaintiff is unable to perform any past relevant work. [AR 25.] At step five, 25 based on the testimony of the vocational expert (“VE”), the ALJ found that Plaintiff 26 could perform other work that exists in significant numbers in the national economy, 27 including representative occupations such as office helper, hand packager, and 28 information clerk. [AR 26-27.] Therefore, the ALJ concluded that Plaintiff has not 2 Case 5:21-cv-01630-GJS Document 20 Filed 02/13/23 Page 3 of 9 Page ID #:464

1 been disabled since July 23, 2019, the application date. [AR 26.] 2 The Appeals Council denied review of the ALJ’s decision on July 29, 2021. 3 [AR 1-6.] This action followed. 4 Plaintiff contends that the ALJ did not offer legally sufficient reasons for 5 rejecting her subjective complaints. [Pl. Br. at 4-16.] 6 The Commissioner asserts that the ALJ’s decision is supported by substantial 7 evidence and should be affirmed. [Def. Br. at 2-17.] 8 9 III. GOVERNING STANDARD 10 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 11 determine if: (1) the Commissioner’s findings are supported by substantial 12 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 13 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 14 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence … is 15 ‘more than a mere scintilla’ … [i]t means – and only means – ‘such relevant 16 evidence as a reasonable mind might accept as adequate to support a conclusion.’” 17 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v. 18 Comm’r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) (“[s]ubstantial evidence is 19 more than a mere scintilla but less than a preponderance”) (internal quotation marks 20 and citation omitted). 21 The Court will uphold the Commissioner’s decision when “‘the evidence is 22 susceptible to more than one rational interpretation.’” Burch v. Barnhart, 400 F.3d 23 676, 681 (9th Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 24 1989)). However, the Court may review only the reasons stated by the ALJ in the 25 decision “and may not affirm the ALJ on a ground upon which he did not rely.” 26 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the 27 Commissioner’s decision if it is based on harmless error, which exists if the error is 28 “inconsequential to the ultimate nondisability determination, or that, despite the 3 Case 5:21-cv-01630-GJS Document 20 Filed 02/13/23 Page 4 of 9 Page ID #:465

1 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin, 2 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted). 3

IV. DISCUSSION

4 Plaintiff contends the ALJ improperly rejected her subjective symptom 5 testimony. [Pl. Br. at 4-16.] 6 In evaluating a claimant’s testimony regarding subjective pain or symptoms, 7 an ALJ must engage in a two-step analysis. See Lingenfelter v. Astrue, 504 F.3d 8 1028, 1035-36 (9th Cir. 2007); 20 C.F.R. § 416.929. “First, the ALJ must determine 9 whether the claimant has presented objective medical evidence of an underlying 10 impairment, ‘which could reasonably be expected to produce the pain or other 11 symptoms alleged.’” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 12 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first 13 step and there is no evidence of malingering, “‘the ALJ can reject the claimant’s 14 testimony about the severity of her symptoms only by offering specific, clear and 15 convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting Smolen 16 v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “The ALJ must state specifically 17 which symptom testimony is not credible and what facts in the record lead to that 18 conclusion.” Smolen, 80 F.3d at 1284; see also Soc. Sec. Ruling 16-3p Titles II & 19 XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P, 2017 WL 5180304, 20 *4 (S.S.A. Oct. 25, 2017) (explaining that the ALJ must “evaluate the intensity and 21 persistence of [the] individual’s symptoms ... and determine the extent to which 22 [those] symptoms limit [his] ... ability to perform work-related activities”). 23 At the hearing, Plaintiff testified that she has difficulty sitting, standing, and 24 walking. [AR 38-39, 45.] Plaintiff explained that she hurt her knees and fractured 25 her right foot and ankle in a car accident. [AR 38-39.] Plaintiff stated that she can 26 stand for about 6 or 7 minutes and her in-home health aide helps her walk around 27 the house. [AR 39, 45.] Plaintiff also uses a walker, cane or crutches to get from 28 4 Case 5:21-cv-01630-GJS Document 20 Filed 02/13/23 Page 5 of 9 Page ID #:466

1 room to room and she occasionally wears a walking boot. [AR 39, 45.] Plaintiff 2 testified that her feet go numb if she sits too long and she uses a heating pad to help 3 with pain and swelling in her ankle. [AR 38-39, 41.] Plaintiff claimed that she had 4 to stop working as a hairdresser due to carpal tunnel problems. [AR 38.] 5 The ALJ rejected Plaintiff’s testimony to the extent it conflicted with the 6 RFC. [AR 22-24.] The ALJ provided three reasons for not fully crediting 7 Plaintiff’s subjective symptom allegations. 8 1. Medical Evidence 9 The ALJ found that Plaintiff’s testimony was unsupported by the objective 10 medical evidence of record. [AR 22-23.] The ALJ may consider objective medical 11 evidence when assessing a claimant’s testimony. See 20 C.F.R. § 416.929(c)(2) 12 (“Objective medical evidence … is a useful indicator to assist us in making 13 reasonable conclusions about the intensity and persistence of your symptoms and 14 the effect those symptoms, such as pain, may have on your ability to work…”); 15 Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot form the sole 16 basis for discounting pain testimony, it is a factor that the ALJ can consider in his 17 credibility analysis.”). 18 Here, although the record shows that Plaintiff fractured her right talus and 19 calcaneus in July 2018, and has a history of fibromyalgia and other impairments, the 20 ALJ found that Plaintiff’s allegations of disabling symptoms and limitations were 21 unsupported by the medical evidence of record. [AR 22-23.] For example, an x-ray 22 of Plaintiff’s right foot from August 2018 demonstrated pes planus (flat foot), with 23 no fracture reported. [AR 22, 261.] In November 2018, Plaintiff had some 24 tenderness along the calcaneal and lateral dorsal talar bones but normal range of 25 motion, stability and muscle strength, with no fatigue, joint swelling, abnormal gait, 26 muscle aches, headaches, clubbing, cyanosis, edema, crepitus, deformity or effusion. 27 [AR 22, 285-86.] In December 2018, an x-ray of Plaintiff’s right ankle revealed soft 28 tissue swelling and mild osteopenia, but no ankle fracture. [AR 23, 265.] In 5 Case 5:21-cv-01630-GJS Document 20 Filed 02/13/23 Page 6 of 9 Page ID #:467

1 January 2019, Plaintiff had normal motor strength and sensation to all extremities, 2 was able to move all extremities with good active and passive range of motion and 3 could ambulate normally with a CAM (controlled ankle motion) boot. [AR 23, 289- 4 90.] Plaintiff reported that her pain was manageable with her current medication 5 regimen, which included Lyrica and ibuprofen. [AR 23, 289-90.] In October 2019, 6 Plaintiff had soft tissue tenderness in 11/18 tender points, but no active synovitis. 7 [AR 23, 326.] In December 2019, Plaintiff’s range of motion, stability, and muscle 8 strength/tone were normal. [AR 23, 301.] In February and April 2020, Plaintiff’s 9 musculoskeletal examinations were normal and her doctor recommended that she 10 walk for exercise. [AR 342, 346.] In July and December 2020, Plaintiff had soft 11 tissue tenderness in 10/18 and 9/18 tender points, respectively, with no active 12 synovitis. [AR 23, 367, 370.] 13 The ALJ properly considered the medical reports and clinical findings (or a 14 lack thereof) to conclude that Plaintiff did not exhibit the limitations and symptoms 15 consistent with her subjective complaints. See 20 C.F.R. § 416.929(c)(2); SSR 16- 16 3p, 2017 WL 5180304, *5 (“The intensity, persistence, and limiting effects of many 17 symptoms can be clinically observed and recorded in the medical evidence.”). 18 Although the medical evidence could give rise to inferences more favorable to 19 Plaintiff, the ALJ’s interpretation was rational and should be upheld. See Burch, 20 400 F.3d at 680. 21 Plaintiff argues that the lack of objective medical evidence cannot form the 22 sole basis for rejection of her symptom testimony. [Pl. Br. at 9-10.] However, as 23 discussed below, the ALJ provided additional rationale, supported by substantial 24 evidence, for discounting Plaintiff’s testimony. 25 Plaintiff also challenges the ALJ’s reliance on the medical evidence to 26 discredit her subjective complaints, because she suffers from fibromyalgia, a disease 27 that “‘is diagnosed entirely on the basis of patients’ reports of pain and other 28 symptoms.’” [Pl. Br. at 11 (quoting Benecke v. Barnhart, 379 F.3d 587, 594 (9th 6 Case 5:21-cv-01630-GJS Document 20 Filed 02/13/23 Page 7 of 9 Page ID #:468

1 Cir. 2004)).] Plaintiff’s argument lacks merit, as Plaintiff’s diagnosis of 2 fibromyalgia is not in dispute. [AR 18 (finding fibromyalgia was a severe 3 impairment).] Although the objective medical evidence cannot establish the 4 existence of fibromyalgia, the medical evidence is still relevant and can be used “to 5 demonstrate a lack of functional limitations during clinical examination.” Melendez 6 v. Astrue, No. CV 10-01930-JEM, 2011 WL 6402287, at *6 (C.D. Cal. Dec. 20, 7 2011) (“A diagnosis of fibromyalgia is not a free disability card that renders all 8 medical evidence irrelevant for all purposes.”). 9 Plaintiff further argues that, in finding Plaintiff’s allegations of disabling 10 symptoms unsupported by the objective medical evidence, the ALJ erred by failing 11 to connect any specific portions of Plaintiff’s testimony to the relevant parts of the 12 record. [Pl. Br. at 9.] An ALJ “must identify what testimony is not credible and 13 what evidence undermines the claimant’s complaints.” Brown-Hunter, 806 F.3d at 14 493. The ALJ complied with this standard. The ALJ first identified Plaintiff’s 15 testimony that she has significant limitations in several basic areas of physical 16 functioning (i.e., sitting, standing, and walking) and then identified the medical 17 records that undermined that testimony, as discussed above. [AR 21-24.] Given 18 this analysis, the ALJ did not err by failing to explain his reasoning with the 19 requisite specificity. 20 2. Routine and Conservative Treatment 21 The ALJ found that the routine, conservative, and non-emergency treatment 22 Plaintiff received undermined her subjective symptom testimony. [AR 22.] 23 “[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 24 testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 25 750-51 (9th Cir. 2007); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 26 1999) (rejecting subjective pain complaints where petitioner’s “claim that she 27 experienced pain approaching the highest level imaginable was inconsistent with the 28 ‘minimal, conservative treatment’ that she received”). Here, the ALJ noted that 7 Case 5:21-cv-01630-GJS Document 20 Filed 02/13/23 Page 8 of 9 Page ID #:469

1 Plaintiff’s treatment included occasional use of a CAM boot and recommendations 2 from her doctor that she walk for exercise. [AR 21-23, 38-39, 289-90, 346.] 3 Plaintiff also reported that her pain was manageable with medication and that she 4 uses a heating pad on her ankle. [AR 21-23, 38-39, 289.] Thus, substantial 5 evidence supports the ALJ’s conclusion that Plaintiff’s treatment history was routine 6 and conservative. [AR 22-23.] 7 Plaintiff asserts that the ALJ “isolates the record and does not view it as a 8 whole.” [Pl. Br. at 11.] However, Plaintiff fails to cite any medical reports or other 9 evidence in the record suggesting that Plaintiff received more aggressive forms of 10 treatment or that the ALJ selectively relied on isolated pieces of evidence in the 11 record.2 Thus, Plaintiff’s conservative treatment history was a specific, clear and 12 convincing reason for discounting Plaintiff’s testimony. See Parra, 481 F.3d at 13 750-51; see also Hanes v. Colvin, 651 F. App’x 703, 705 (9th Cir. 2016) (explaining 14 that the claimant’s “conservative treatment plan, which consisted primarily of 15 minimal medication, limited injections, physical therapy, and gentle exercise” 16 supported rejection of the claimant’s testimony). 17 3. Activities of Daily Living 18 The ALJ found Plaintiff’s admitted activities of daily living were inconsistent 19 with Plaintiff’s allegations of debilitating limitations. [AR 22.] One of the factors 20 that an ALJ may considering in weighing a claimant’s subjective symptom 21 testimony is the inconsistency between the testimony and the claimant’s statements 22 to others. See Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599- 23 600 (9th Cir. 1999). Here, the ALJ found that Plaintiff’s allegations of disabling 24 limitations were inconsistent with Plaintiff’s prior report to her doctor that she was 25 able to perform activities of daily living at home “without difficulty.” [AR 22, 289.] 26

27 2 The Court notes that although Plaintiff requested evaluation for bariatric surgery, her doctor recommended portion control, exercise (walking and biking), 28 and avoiding snacks. [AR 295, 306, 342, 344, 346, 348, 350, 352.] 8 Case 5:21-cv-01630-GJS Document 20 Filed 02/13/23 Page9of9 Page ID #:470

1 || The ALJ also noted that Plaintiff testified at the hearing that she can drive, lives 2 |) with her four children, and sits with her children while they attend online school. 3 || [AR 22, 40, 43-44.] Plaintiff's admissions that she performs activities of daily 4 |) living “without difficulty” and sits with her children during school appear to conflict 5 || with her hearing testimony describing significant limitations in several basic areas 6 || of functioning, including sitting, standing, and walking. [AR 21-22, 24.]| 7 Plaintiff argues that her activities do not demonstrate an ability to spend a 8 || substantial part of the day doing activities transferable to full-time work setting. [PI. 9 || Br. at 12.] The ALJ, however, was not required to find that the medical record 10 || conclusively demonstrated Plaintiffs ability to function effectively in the 11 || workplace. It was sufficient for the ALJ to find that Plaintiff's statements to her 12 || doctor and at the hearing were inconsistent with her testimony describing disabling 13 || limitations. See Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 693 14 || (9th Cir. 2009) (“The ALJ recognized that this evidence did not suggest [the 15 || claimant] could return to his old job . . , but she thought it did suggest that [the 16 || claimant’s] later claims about the severity of his limitations were exaggerated.”). 17 18 V. CONCLUSION 19 For all of the foregoing reasons, IT IS ORDERED that the decision of the 20 || Commissioner finding Plaintiff not disabled is AFFIRMED 21 22 IT IS SO ORDERED. 23 24 || DATED: February 13, 2023 25 6 GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

27 28