INTRODUCTION

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20 On November 15, 2022, Plaintiff Hector J. O. (“Plaintiff”) filed a complaint 21 for review of denial of social security disability benefits. (Dkt. 1.) Plaintiff filed a 22 “Motion for Remand” which constitutes Plaintiff’s Brief (“PB”) under the Rule 6 23 of the Supplemental Rules for Social Security Actions under 42 U.S.C. § 405(g). 24 (Dkt. 17.) Defendant filed a cross motion for summary judgement which 25 constitutes the Commissioner’s Brief (“CB”) under the Rule 7. (Dkt. 20.) Plaintiff 26 filed a reply brief (“PRB”) on May 22, 2023. (Dkt. 21.) 27 For the reasons stated below, Plaintiff’s motion for remand is DENIED and 28 Defendant’s motion for summary judgement is GRANTED. 1 II. 2 BACKGROUND 3 In March 2019, Plaintiff applied for Supplemental Security Income alleging 4 a disability onset date of March 10, 2019, at age 43. Administrative Record 5 (“AR”) 15, 206-12. On January 26, 2022, an Administrative Law Judge (“ALJ”) 6 conducted a telephonic hearing at which Plaintiff, who was represented by counsel, 7 appeared and testified along with a vocational expert (“VE”). AR 35-53. 8 On March 8, 2022, the ALJ issued an unfavorable decision. AR 12-27. The 9 ALJ found that Plaintiff suffered from the severe, medically determinable 10 impairments (“MDIs”) of “status post traumatic brain injury; status post left 11 clavicle, wrist, and left toe fracture; degenerative disc disease; arthralgia; myalgia; 12 and obesity.” AR 17. The ALJ found that Plaintiff’s impairments of headaches 13 and history of methamphetamine use disorder were not severe. AR 17. 14 To determine Plaintiff’s residual functional capacity (“RFC”), the ALJ 15 considered Plaintiff’s testimony about the limiting effects of his symptoms (AR 16 24-25) as well as Plaintiff’s medical records (AR 23-24). The ALJ also considered 17 the medical opinions of State Agency medical consultants K. Lee, M.D. and Scott 18 Spoor, M.D. AR 25-26. In July 2019, Dr. Lee found that Plaintiff had limited 19 reaching with his “[l]eft in front and/or laterally” and his “[l]eft overhead.” AR 63. 20 Dr. Lee did not provide a further explanation. In October 2019, Dr. Spoor found 21 the same directional reaching limitations and quantified that Plaintiff was limited 22 to reaching “frequently” with his left upper extremity.1 AR 77. 23 The ALJ found that despite Plaintiff’s MDIs, he had the residual functional 24 capacity (“RFC”) to perform light work with some limitations on lifting/carrying 25

26 1 In the context of social security claims, “occasionally” means up to 1/3 of 27 the workday, while “frequently” means up to 2/3 of the workday. Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *5-*6. 28 1 (20 pounds occasionally and 10 pounds frequently), standing/walking (2 hours in 2 an 8-hour workday in 30-minute intervals), sitting (6 hours in an 8-hour workday), 3 and postural activities (occasionally, but no climbing ladders, ropes, or scaffolds). 4 AR 21-22. The ALJ did not impose any limitations on Plaintiff’s reaching. 5 The ALJ found that Plaintiff had no past relevant work. AR 26. Based on 6 the RFC findings, the VE’s testimony, and other evidence, the ALJ found that 7 Plaintiff could work as an order clerk (Dictionary of Occupational Titles [“DOT”] 8 209.567-014), hand bander (DOT 920.687-030), and addressing clerk (DOT 9 209.587.010). AR 26-27. Per the DOT, the addressing and order clerk jobs 10 require “frequent” reaching while the hand bander job requires “constant” 11 reaching. The ALJ concluded that Plaintiff was not disabled. AR 27. 12 III. 13 ISSUES PRESENTED 14 Issue One: Whether the ALJ provided specific, clear, and convincing 15 reasons for rejecting Plaintiff’s subjective symptom testimony. (PB at 6-12.) 16 Issue Two: Whether substantial evidence supports the ALJ’s rejection of the 17 opinions from Drs. Lee and Spoor. (PB at 6, 12-15.) 18 Issue Three: Whether substantial evidence supports the ALJ’s determination 19 that Plaintiff could perform work considering Plaintiff’s left upper extremity 20 reaching limitations. (PB at 6, 15-18.) 21 Issue Four: Whether the ALJ identified work Plaintiff could perform in 22 occupations with a substantial number of positions in the national economy. (PB 23 at 6-7, 18-20.) 24 IV. 25 SUMMARY OF RELEVANT MEDICAL EVIDENCE 26 The ALJ provided a summary of the medical evidence following Plaintiff’s 27 car accident on March 10, 2019. See AR 23-24. 28 1 A. Left Clavicle, Neck, and Back. 2 X-rays of the left clavicle on March 11, 2019 (the day after the car accident 3 in which an airbag was deployed, AR 316), showed “[a]cute, comminuted and 4 mildly displaced mid-left clavicular fracture with inferior displacement of the 5 distal fracture component.” AR 400; see AR 323, 378. X-rays of the left foot on 6 the same date showed an “[a]acute, mildly displaced oblique intra-articular fracture 7 at the medial base of the great toe proximal phalanx.” AR 401; see AR 378. X- 8 rays of the left hand on the same date showed an “[a]cute mildly displayed 9 triquetral fracture with dorsal soft tissue swelling.” AR 402; see AR 378. 10 On March 14, 2019, Plaintiff went to the hospital emergency room, 11 complaining of chest and facial soreness. AR 316. Plaintiff reported he was not 12 taking pain medication. AR 316. Physical examination did not reveal any 13 abnormalities. AR 317-18. X-rays of the chest were unremarkable except for the 14 left clavicle fracture. AR 717. Plaintiff received a partial cast on the left wrist and 15 left foot, with a surgical shoe. See AR 318, 356. Plaintiff was given a Toradol 16 injection for the pain, and over-the-counter pain medication was recommended. 17 AR 320. 18 X-rays of the lumbar spine on March 20, 2019, did not show anything 19 significant except for a possible minimal compression fracture at L1. AR 344, 20 398. X-rays of the cervical spine on the same date showed mild to moderate 21 degenerative disc disease at C5 through C7 with the encroachment of the neural 22 foramina, but otherwise were unremarkable. AR 397. X-rays of the thoracic spine 23 on the same date were unremarkable. AR 399. 24 X-rays of the left clavicle on March 26, 2019, showed a “[m]arkedly 25 displaced comminuted fracture of the mid shaft of the left clavicle with one shaft 26 width of inferior displacement of the distal fracture fragment.” AR 434; see also 27 AR 438, 440, 442-43, 447 (X-rays of the left clavicle and left shoulder on April 17, 28 2019, May 13, 2019, and May 20, 2019); AR 446 (MRI of the chest on May 20, 1 2019). 2 On March 29, 2019, Plaintiff went to a follow-up appointment at High 3 Desert Orthopedics, complaining of pain in the left clavicle, left wrist, left knee, 4 and left foot. AR 510. Physical examination revealed swelling and tenderness in 5 the left mid clavicle, but the shoulder had full range of motion and no tenderness. 6 AR 510. 7 On April 4, 2019, Plaintiff received a clavicle brace. AR 357; see AR 510. 8 X-rays of the left knee on April 11, 2019 and of the right knee on April 26, 2019 9 showed minimal degenerative joint disease, but were otherwise unremarkable. AR 10 395-96. 11 An MRI of the left wrist on May 16, 2019, showed an acute multipart 12 fracture of the left trapezoid bone, “osseous edema in the adjacent base of the 13 second metacarpal likely representing concurrent contusion or nondisplaced 14 fracture,” thickening and instrasubstance signal change along the ulnar groove of 15 the extensor carpi ulnaris tendon representing tendinosis and tendinitis, and 16 subluxation of the tendon from the ulnar groove. AR 443-44.2 17 From March 20, 2019 through May 20, 2019, Plaintiff obtained treatment at 18 Apple Valley Christian Care Center/Choice Healthcare Associates – Apple Valley 19 (“Choice Healthcare”), primarily for hypertension. AR 367-74, 459, 461. Physical 20 examinations did not reveal any abnormalities. AR 368 (5/20/19), 373 (4/10/19), 21 378-79 (3/20/19). Plaintiff was started on ibuprofen and cyclobenzaprine (brand 22 name, Flexeril), a muscle relaxant (AR 379: 3/20/19) and on Mobic (generic name, 23 meloxicam), a nonsteroidal anti-inflammatory drug (“NSAID”) (AR 375: 4/1/19). 24 On May 23, 2019, Plaintiff underwent an open reduction and internal 25 fixation of the left clavicle. AR 412-13, 417, 587-88; see AR 682. 26

27 2 X-rays of the left wrist on March 26, 2019, were “limited by overlying casting material.” AR 435. 28 1 X-rays of the left clavicle on July 26, 2019, showed “evidence of a previous 2 ORIF [open reduction and internal fixation] of a fracture of the midshaft of the left 3 clavicle,” fragments in excellent apposition, “evidence of bony fusion at the site of 4 the fracture,” and normal left acromioclavicular space. AR 451; see also AR 450 5 (X-rays of the left clavicle on May 25, 2019 showed satisfactory position and 6 alignment). 7 From August 6, 2019 through August 20, 2019, Plaintiff obtained treatment 8 from Choice Healthcare for hypertension, concussion, fracture, and cholesterol. 9 AR 461-69. Plaintiff complained of continuing low back pain and of difficulty 10 bending, standing excessively, bending his left arm (lifting heavy items), and 11 bending his wrist. AR 464. Physical examination on August 6, 2019, was 12 unremarkable, except for pain at the level clavicle where he had surgery, but with 13 approximately 4/5 strength, and except for pain on direct palpation of the lower 14 lumbar region. AR 465. 15 Plaintiff sought treatment for his shoulder, neck, and back pain at Universal 16 Pain Management (“Universal”) on August 16, 2019. AR 760-63. Plaintiff 17 reported having a constant aching and sting pain which increased with all activity. 18 AR 760. Pain reported his pain level as 9/10. AR 760, 762. Plaintiff’s current 19 medications were ibuprofen and Tylenol with codeine. AR 760. Physical 20 examination revealed the following: he was able to transition from a seated to a 21 standing position with mild to moderate difficulty; the neck did not have any 22 swelling, erythema or redness at the neck but range of motion was limited; there 23 was pelvic obliquity, the lumbar paraspinal muscles and SI joints were tender to 24 palpation, back range of motion was limited, and straight leg raising tests were 25 positive on the right and the left; muscle stretch reflexes in the upper and lower 26 extremities were 2+ and sensation was decreased; gait was antalgic and he did not 27 require the use of an assistive device or brace; and the extremities did not show 28 cyanosis, clubbing, or edema. AR 762. 1 An MRI of the cervical spine on August 30, 2019, revealed “[m]ild 2 degenerative disc disease and spondylosis with underlying congenital spinal 3 stenosis and small disc osteophyte complexes,” “[m]ild to moderate spinal stenosis 4 at C5-6 and C6-7,” and “[m]ild to moderate foraminal stenosis from C4-5 to C6- 5 7.” AR 756-77; see AR 748. An MRI of the lumbar spine on August 30, 2019, 6 revealed “[m]ild degenerative disc disease with small posterior disc bulge at L5- 7 S1,” “mild bilateral foraminal stenosis at L4-5 and L5-S1” [and] “[¶]race lateral 8 recess narrowing at L4-5,” and “multilevel facet hypertrophy, most notably at L4- 9 5.” AR 758-59; see AR 748. 10 In September 2019, Plaintiff began physical therapy for his neck and back 11 pain. See AR 755.3 12 On September 18, 2019, Plaintiff returned to Universal. Plaintiff reported 13 intermittent pain that was aching, sharp, and shooting. AR 752. Plaintiff also 14 reported low back pain which was constant and radiating. AR 752. Plaintiff 15 reported his pain level as 6/10, but he was not taking any medications. AR 752, 16 754. Physical examination revealed the same results as on August 16, 2019. AR 17 754. 18 Plaintiff went to an appointment at Universal on December 27, 2019, 19 complaining of pain varying in intensity. AR 747. Plaintiff reported that his pain 20 level with medications was 5/10 and without medications was 9/10. AR 747. 21 Plaintiff requested and was prescribed Tylenol with codeine, which he said had 22 been very effective in the past. AR 747, 749-50. 23 From March 6, 2020 through August 18, 2020, Plaintiff obtained treatment 24 from Choice Healthcare for methamphetamine abuse in remission, a compression 25 fracture at L1, concussion, hypertension, prediabetes, and cholesterol. AR 801. 26 On March 6, 2020, Plaintiff complained of intermittent spasms. AR 810. Physical 27 3 It appears that there are no physical therapy records in the AR. 28 1 examination revealed unremarkable results, except for pain in the left clavicle 2 (although strength was approximately 4/5), and pain on direct palpation of the 3 paraspinal region. AR 811. On August 6, 2019, Plaintiff complained of 4 continuing low back pain and of difficulty bending, standing excessively, bending 5 his left arm (lifting heavy items), and bending his wrist. AR 464. Physical 6 examination did not reveal any abnormalities. AR 465. On August 18, 2020, 7 Plaintiff complained of low back and mid back constant, non-radiating pain, 8 stiffness, and decreased range of motion. AR 804. Symptoms were exacerbated 9 by weight bearing, lifting, back motion, standing, prolonged standing, sitting, 10 prolonged sitting, bending, straining, and supine position. AR 804.4 11 On May 10, 2020, Plaintiff went to the hospital emergency room regarding a 12 throat issue. AR 544. Physical examination revealed no issues with Plaintiff’s 13 neck and extremities. AR 545-46. 14 On July 1, 2020, Plaintiff returned to Universal, and complained of constant 15 and dull pain in the low back and bilateral knees. AR 792. Plaintiff reported he 16 rarely took opioid medication and stated he would prefer non-opioid treatment. 17 AR 792. Plaintiff reported his pain level as 7/10. AR 792-93. Plaintiff was 18 prescribed Mobic (generic name, meloxicam), a nonsteroidal anti-inflammatory 19 drug (“NSAID”). AR 794. 20 On July 29, 2020, Plaintiff had his first telehealth visit at Universal. 21 Plaintiff complained of pain in the head, neck, back, and knees. AR 788. Plaintiff 22 stated he was less functional because of increased pain. AR 788. Plaintiff reported 23 that Mobic was “only very minimally effective” and requested stronger 24 medication. AR 788. Plaintiff reported his pain level as 10/10. AR 788-89. 25 At his next telehealth visit at Universal on August 26, 2020, Plaintiff 26

27 4 Plaintiff later did not show up for appointments at Choice Healthcare on September 4, 2020 and January 12, 2021. AR 801-03. 28 1 complained of pain in his neck, low back, and lower extremities. AR 784. 2 Plaintiff reported having “partial symptomatic relief and moderate functional 3 improvement with [his] current medication regimen.” AR 784. Plaintiff reported 4 his pain level as 8/10. AR 784-85. 5 On November 13, 2020, Plaintiff had another telehealth visit with Universal, 6 and made the same complaints as in August. AR 780. Plaintiff reported taking 7 tramadol intermittently and mostly taking CBD oil for his pain. AR 780. Plaintiff 8 reported his pain as 6/10. AR 780-81. 9 At his next telehealth visit at Universal on January 5, 2021, Plaintiff 10 complained of constant cervical spine and low back pain that varied in intensity. 11 AR 772. Plaintiff was taking CBD oil for his pain. AR 773. Plaintiff reported his 12 pain as 5/10. AR 773. 13 On February 2, 2021, at another telehealth visit at Universal, Plaintiff 14 complained of low back pain which was aggravated by increased activity 15 movements. AR 766. Plaintiff reported he had stopped taking narcotic pain 16 medication (he suffered side effects) and was taking CBD oil. AR 766. Plaintiff 17 reported his pain level as 7/10. AR 766, 767. 18 At his next telehealth visit at Universal on May 18, 2021, Plaintiff 19 complained of intensified pain in his low back (described as constant and 20 radiating), and requested stronger medication. AR 899-900. It was noted that 21 Plaintiff had tried and failed the course of a home exercise program and NSAIDs. 22 AR 899. Plaintiff reported his pain level as 7/10. AR 899. Plaintiff was 23 prescribed Tylenol with codeine. AR 902. 24 On June 15, 2021, at his next telehealth visit at Universal, Plaintiff 25 complained of low back pain, and requested pain medication refills. AR 894-95. 26 Plaintiff reported that the pain medication “allow[ed] him to be functional.” AR 27 894. Plaintiff reported his pain level as 8/10. AR 894-95. 28 At another telehealth visit at Universal on July 30, 2021, Plaintiff 1 complained of low back pain, but reported that his pain had decreased and that he 2 rarely takes his pain medication. AR 886. Plaintiff reported that “Tylenol with 3 codeine has been helpful when he needs it” and that he had stopped taking 4 tramadol since he tested positive for tramadol at his last urine drug screening test. 5 AR 886. Plaintiff reported his pain level as 6/10. AR 886-87. 6 On October 5, 2021, at his next telehealth visit at Universal, Plaintiff 7 complained of low back pain, and reported that his pain medication was inadequate 8 for his pain level. AR 881-82. Plaintiff reported his pain level as 8/10. AR 882- 9 83. Plaintiff was prescribed Norco (generic name, hydrocodone), an opioid. AR 10 884. 11 At a telehealth visit at Universal on November 2, 2021, Plaintiff complained 12 of low back pain. AR 872. Plaintiff reported having migraine headaches. AR 13 872. Plaintiff reported that Norco was not effective (so it was discontinued). AR 14 872. Plaintiff reported his pain level as 6/10. AR 872-73. Plaintiff was prescribed 15 gabapentin (brand name, Neurontin), an anticonvulsant and nerve pain medication. 16 AR 874-75. 17 B. Brain. 18 On May 21, 2019, Plaintiff sought treatment at High Desert Neurology 19 Diagnostic Medical Group (“High Desert”), complaining of daily pounding and 20 throbbing headaches since the accident. AR 404. Plaintiff also complained of 21 short-term memory loss since the accident (it was noted that Plaintiff’s mini- 22 mental state examination [“MMSE”] score was 28/30, indicating low normal 23 cognition). AR 404-05. Plaintiff reported taking ibuprofen and Flexeril. AR 404. 24 Plaintiff reported his pain level as 8.9/10. AR 404. While Plaintiff reported 25 decreased memory, he did not report any difficulty speaking, dizziness, fainting, 26 numbness, paresthesias, trouble walking, unsteadiness, vertigo, or weakness. AR 27 405. Neurological examination revealed “normal attention span and ability to 28 concentrate and ab[ility] to name objects and repeat phrases” and “[a]ppropriate 1 fund of knowledge.” AR 405. Plaintiff was prescribed diclofenac, a NSAID, and 2 nortriptyline, a nerve pain medication. AR 406. 3 An MRI of the brain on June 4, 2019, showed “[v]ery mild scattered 4 subcortical white matter T2/FLAIR hypersensitivities [that] are nonspecific but 5 may represent sequela of chronic migraine headaches.” AR 428. 6 At an appointment with Choice Healthcare on August 6, 2019, Plaintiff 7 reported having trouble with his memory and experiencing headaches without 8 vision changes. AR 464. Plaintiff’s mother, who was at the appointment, reported 9 that Plaintiff had memory problems and recurrent headaches. AR 465. 10 On November 22, 2019, Plaintiff returned to High Desert, and complained 11 of having headaches every five days. AR 862. Plaintiff reported he was not going 12 to take analgesics. AR 832. Neurological examination the same results as in May 13 2019. AR 863. 14 At a telehealth visit at High Desert on June 24, 2020, Plaintiff reported 15 having headaches, a short attention span, and poor retention capacity. AR 860. 16 Plaintiff again did not report any difficulty speaking, dizziness, fainting, numbness, 17 paresthesias, trouble walking, unsteadiness, vertigo, or weakness. AR 860. 18 Neurological examination revealed the same results as in May 2019. AR 861. 19 However, at an appointment at Choice Healthcare on August 18, 2020, Plaintiff 20 reported that his headaches had improved. AR 805. 21 On October 22, 2020, at his next telehealth visit at High Desert, Plaintiff 22 reported the same issues as in June. AR 858. Plaintiff again did not report any 23 difficulty speaking, dizziness, fainting, numbness, paresthesias, trouble walking, 24 unsteadiness, vertigo, or weakness. AR 858. Neurological examination revealed 25 the same results as in May 2019, except for a slightly impaired short term memory 26 (MMSE 27/30, representing mild cognitive impairment). AR 858-59. Plaintiff 27 was prescribed methylphenidate, a stimulant, and was referred for a neurocognitive 28 examination. AR 858-59. 1 At his next telehealth appointment at High Desert on February 23, 2021, 2 Plaintiff reported his headaches had subsided. AR 856. Neurological examination 3 revealed the same results as in October 2020, except for a slight improvement in 4 his short term memory (MMSE 28/30). AR 856-57. 5 An MRI of the brain on March 9, 2021 did not show significant changes 6 from the June 4, 2019 MRI. AR 864. 7 At an appointment at Choice Healthcare on March 30, 2021, Plaintiff 8 reported that he has a short attention span since he was younger. AR 916. 9 On August 24, 2021, Plaintiff had a telehealth visit at High Desert. 10 Plaintiff’s headaches were noted to have subsided. AR 867. Plaintiff complained 11 of memory loss. AR 867. Neurological examination revealed the same results as 12 in February, except for a decrease in short term memory (MMSE 25/30). AR 867- 13 68. Plaintiff was noted to have missed his appointment for a neurobehavioral and 14 neurocognitive examination with a neuropsychologist, AR 867. Plaintiff was 15 advised to reschedule that appointment and to follow up with his neurologist in six 16 months. AR 867. 17 IV. 18 DISCUSSION 19 A. ISSUE ONE: Plaintiff’s Symptom Testimony. 20 Plaintiff contends that the ALJ erred by failing to give clear and convincing 21 reasons for rejecting Plaintiff’s subjective symptom testimony.5 Plaintiff 22 specifically argues that the ALJ failed to provide clear and convincing reasons for 23 rejecting “Plaintiff’s statements about his durational limitations [regarding] 24 standing, walking, and sitting; his issues reaching with his left upper extremity; his 25 26

27 5 Plaintiff concedes that the ALJ provided clear and convincing reasons for rejecting Plaintiff’s testimony about his short-term memory loss. (PB at 10-11.) 28 1 need to alternate positions, [and] his reliance on a cane.” (PB at 6-12.) 2 1. Relevant Law. 3 The ALJ engages in a two-step analysis to evaluate a claimant’s subjective 4 symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 5 2007). “First, the ALJ must determine whether the claimant has presented 6 objective medical evidence of an underlying impairment [that] could reasonably be 7 expected to produce the pain or other symptoms alleged.” Id. at 1036. If so, the 8 ALJ may not reject a claimant’s testimony “simply because there is no showing 9 that the impairment can reasonably produce the degree of symptom alleged.” 10 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 11 Second, if the claimant meets the first test, the ALJ may discredit the 12 claimant’s subjective symptom testimony only by making specific findings that 13 support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010); 14 Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). Unless an ALJ finds that a 15 claimant is malingering or has failed to provide objective medical evidence in 16 support of his or her testimony, an ALJ must provide clear and convincing reasons 17 for rejecting a claimant’s subjective testimony about the severity of experienced 18 symptoms. Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015). While 19 an ALJ’s findings must be properly supported and sufficiently specific to assure a 20 reviewing court that the ALJ did not “arbitrarily discredit” a claimant’s subjective 21 statements, an ALJ is not “required to believe every allegation” of disability. Fair 22 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).6 23

24 6 SSR 16-3p, 2017 WL 5180304, which is applicable to this case, eliminated the term “credibility” from the Agency’s sub-regulatory policy. SSR 16-3p makes 25 clear “that assessments of an individual’s testimony by an ALJ are designed to 26 ‘evaluate the intensity and persistence of symptoms after the ALJ finds that the individual has a medically determinable impairment(s) that could reasonably be 27 expected to produce those symptoms,’ and not to delve into wide-ranging scrutiny 28 of the claimant’s character and apparent truthfulness.” Trevizo v. Berryhill, 871 1 2. Summary of Plaintiff’s Testimony. 2 The ALJ summarized Plaintiff’s testimony as follows: 3 The claimant alleges “car accident”, broken left clavicle, fractured left 4 wrist, broken left toe, and torso and back injuries as conditions that 5 limit his ability to work ([AR 230]). The claimant asserts that he is 6 unable to work due to limitations as to standing, walking, sitting, and 7 lifting, as well as memory loss. The claimant testified at the hearing 8 that he can stand for 15-20 minutes at a time, walk for 25-30 minutes 9 at a time, and sit for 20-25 minutes at a time. He testified that he 10 needs to change positions often. He testified that he can lift 25-30 11 pounds. He testified that he has difficulty reaching overhead with his 12 left arm due to his history of a broken clavicle. The claimant testified 13 that he is right-handed. He further testified that he is able to drive a 14 car, and that he can drive for 45 minutes to 1 hour at a time. He 15 testified that he usually has migraines every other day, but sometimes 16 he goes as long as a week without having a migraine. He takes 17 medication for his migraines. The claimant testified that he has short- 18 term memory loss, and that he loses his train of thought. He testified 19 that he lies down five to six times during a typical day, for 45 minutes 20 to one hour at a time, to help relieve his back and knee pain. The 21 claimant testified that the pain does not go away after he lies down, 22 but it gets better. He testified that he uses a cane “on and off” to help 23 himself to stand up after sitting for a long period of time, and he 24 uses a cane to ambulate after walking for 25-30 minutes (without a 25 cane). The claimant testified that the cane was not prescribed by a 26 doctor. He testified he has pain in his neck, back, and knees when he 27 F.3d 664, 678 n.5 (9th Cir. 2017) (quoting SSR 16-3p) (alterations omitted). 28 1 gets dressed and puts his shoes on. He testified that he vacuums his 2 room, but does not do any other household chores; the claimant 3 testified that he lives with his mother, and she does most of the 4 household chores. The claimant testified that he is able to go shopping 5 for groceries. When questioned about his methamphetamine use, the 6 claimant testified that he used to “dabble in it quite a bit” when he was 7 younger. The claimant testified that he stopped using 8 methamphetamine 10-11 years ago. 9 AR 22-23. 10 3. Analysis of the ALJ’s Evaluation of Plaintiff’s Testimony. 11 The ALJ found that while Plaintiff’s MDIs “could reasonably be expected to 12 cause the alleged symptoms,” Plaintiff’s “statements concerning the intensity, 13 persistence and limiting effects of these symptoms are not entirely consistent with 14 the medical evidence and other evidence in the record for the reasons explained in 15 this decision.” AR 23. The ALJ gave at least three reasons for discounting 16 Plaintiff’s symptom testimony: (1) the lack of supporting objective medical 17 evidence (AR 25); and (2) inconsistency with his reported activities (AR 25); and 18 (3) inconsistency with his report to a medical provider about the cause of a 19 symptom (AR 25). 20 a. Reason One: Lack of Supporting Objective Medical Evidence. 21 The ALJ noted that physical examination findings throughout the period at 22 issue did not support Plaintiff’s testimony about the extent of his functional 23 limitations. AR 24. Examinations of Plaintiff’s neurological and musculoskeletal 24 systems revealed mostly normal results. See AR 379 (3/20/19: normal sensation, 25 normal coordination, intact upper and lower extremity deep tendon reflexes, 26 normal strength and tone of the left and right upper and lower extremities), 373 27 (4/10/19: same as on 3/20/19), 368 (5/20/19: same as on 3/20/19), 465 (normal 28 strength and tone of the right upper and lower extremities and the left lower 1 extremity; pain in the left clavicle where there was surgery, but approximately 4/5 2 strength; pain on direct palpation in the lower lumbar region), 863 (11/22/19: 3 normal gait and station, normal muscle strength and tone in all extremities, intact 4 sensation), 811 (3/6/20: same as on 11/22/19, plus Plaintiff has some stiffness 5 when “getting from a seated position”), 546 (5/10/20: no swelling of the neck and 6 no cervical lymphadenopathy; normal appearance and no tenderness of the 7 extremities), 861 (6/24/20: same as on 11/22/19), 858 (10/22/20: same as on 8 11/22/19), 857 (2/23/21: same as on 11/22/19), 868 (8/4/21: same as on 11/22/19). 9 The ALJ also noted that imaging records and records pertaining to Plaintiff’s 10 surgery on his left clavicle did not support Plaintiff’s testimony. AR 24. X-rays of 11 the chest, left shoulder, lumbar spine, thoracic spine, cervical spine, left wrist, left 12 knee, and left foot, as well as MRIs of the left wrist, cervical spine, and lumbar 13 spine do not show significant issues related to those body parts. AR 323, 344, 401- 14 02, 431, 433-37, 440-41, 444-46, 756-59. While X-rays of the chest, left clavicle, 15 and left shoulder prior to left clavicle surgery on May 23, 2019, revealed a 16 fractured left clavicle (AR 323, 400, 434, 438, 440, 442-43, 446-47), X-rays of the 17 left clavicle and records post-surgery indicate the procedure was successful. AR 18 450-51, 682. 19 The ALJ’s discounting of Plaintiff’s subjective symptom testimony 20 regarding his limited abilities to stand, walk, sit, and reach with his left upper 21 extremity, his need to alternate positions, and his need for a cane after long periods 22 of sitting and walking because it was inconsistent with the objective medical 23 evidence was a clear and convincing reason supported by substantial evidence. 24 See Carmickle v. Commissioner, 533 F.3d 1155, 1161 (9th Cir. 2008) 25 (“Contradiction with the medical record is a sufficient basis for rejecting the 26 claimant’s subjective testimony.”). 27 Plaintiff contends that the ALJ did not (1) address Plaintiff’s testimony 28 about his limitations in standing, sitting, and reaching with his left upper extremity, 1 his need to alternate positions, and his need to use a cane after sitting or walking 2 for a long period, and (2) point to specific evidence undermining such testimony. 3 (PB at 9-12). 4 The ALJ’s decision, when viewed in context, addressed such testimony. 5 Moreover, as discussed above, the ALJ adequately identified the lack of support 6 for Plaintiff’s alleged symptoms from Plaintiff’s medical records. 7 b. Reason Two: Inconsistency with Reported Activities. 8 The ALJ wrote that “the claimant testified at the hearing that he is able to 9 stand for 15-20 minutes at a time and walk for 25-30 minutes at a time, drive a car, 10 go shopping for groceries, lift 25-30 pounds, and vacuum his living area, all of 11 which reflect significant improvement in the claimant’s physical abilities since the 12 date of completion of the Exertion Questionnaire.” AR 25. 13 An ALJ may “consider whether the claimant engages in daily activities 14 inconsistent with the alleged symptoms.” Smartt v. Kijakazi, 53 F.4th 489, 499 15 (9th Cir. 2022). In Smartt, the claimant reported doing laundry, grocery shopping, 16 and caring for her young daughter, “albeit in short increments due to pain.” Id. at 17 500. The Ninth Circuit concluded that “the ALJ’s determination that Smartt’s self- 18 reported activities were inconsistent with the constant ‘10/10’ pain she described 19 was not unreasonable.” Id. 20 Similarly, Plaintiff testified that he participated in activities including 21 driving a car for 45 minutes to an hour, vacuuming his small room, grocery 22 shopping with his mother, and walking around the mall. AR 40, 43-46. Given the 23 extremity of his symptom testimony (e.g., that he does not do any chores except for 24 sometimes vacuuming his room, that the only chore he does is make his bed, that 25 he lies down five to six time a day for 45 to 60 minutes, that he needs to nap three 26 times a day for 2 to 3 hours, AR 43-44, 254, 256), the ALJ, like the ALJ in Smartt, 27 could reasonably find that Plaintiff’s testimony was inconsistent with even his 28 limited activities. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) 1 (“Even where those activities suggest some difficulty functioning, they may be 2 grounds for discrediting the claimant’s testimony to the extent that they contradict 3 claims of a totally debilitating impairment.”); Rollins v. Massanari, 261 F.3d 853, 4 857 (9th Cir. 2001) (ALJ correctly found that a claimant’s “claim to have totally 5 disabling pain was undermined by her own testimony about her daily activities”). 6 c. Reason Three: Inconsistency with Medical Provider Report. 7 The ALJ found that, although Plaintiff testified about memory loss resulting 8 from the accident (AR 41, 256), although Plaintiff repeatedly complained to 9 medical providers about decreased memory resulting from the accident (AR 404- 10 05, 464, 860), and although an October 2020 progress note states that Plaintiff had 11 a short attention span and very poor immediate recall (AR 858), Plaintiff reported 12 to a medical provider in March 2021 that “[t]he low attention span and fidgeting he 13 has had since he was younger” (AR 916). AR 24. 14 The record supports the ALJ’s finding that Plaintiff did not consistently 15 report the cause of his memory loss. This is not merely a lack of objective support 16 for Plaintiff’s pain allegations. Inconsistent symptom reporting provides a third 17 clear and convincing reason for discounting Plaintiff’s testimony. See Medina v. 18 Saul, 840 Fed. Appx. 71, 73 (9th Cir. 2020) (the ALJ’s finding of inconsistent 19 symptom reporting was a clear and convincing reason for discounting the 20 claimant’s testimony). 21 B. ISSUE TWO: The Medical Opinion Evidence. 22 Plaintiff contends that the ALJ erred in rejecting the opinions of State 23 Agency medical consultants Dr. Lee and Dr. Spoor about Plaintiff’s left upper 24 extremity reaching limitations. (PB at 6, 12-15, citing AR 63 [Dr. Lee in 7/19: 25 Plaintiff had limited reaching with his “[l]eft in front and/or laterally” and his 26 “[l]eft overhead”], and 77 [Dr. Spoor in 10/19: Plaintiff was limited to frequent 27 reaching of his left upper extremity]). 28 1 1. Relevant Law. 2 An ALJ must consider all relevant medical opinions of record. 20 C.F.R. 3 § 416.927(b). For applications filed after March 27, 2017, like Plaintiff’s, 20 4 C.F.R. § 416.920c applies. Under the updated regulation, an ALJ “will not defer 5 or give any specific evidentiary weight, including controlling weight, to any 6 medical opinion(s) or prior administrative finding(s), including those from [a 7 claimant’s] medical sources.” 20 C.F.R. § 416.920c(a). Instead, an ALJ evaluates 8 medical opinions and prior administrative findings by assessing their 9 “persuasiveness.” Id. An ALJ’s determination of the persuasiveness of medical 10 opinions is based on “supportability,” “consistency,” “relationship with the 11 claimant,” “specialization,” and “other factors.” 20 C.F.R. § 416.920c(c)(1)-(5). 12 An ALJ is no longer required to provide “specific and legitimate” reasons for 13 rejecting a doctor’s opinion. See Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 14 2022). Rather, an ALJ’s decision to discredit any medical opinion “must simply be 15 supported by substantial evidence.” Id. 16 2. The ALJ’s Treatment of the Opinion Evidence. 17 The ALJ found Dr. Lee’s and Dr. Spoor’s opinions about Plaintiff’s physical 18 assessments “less persuasive” “because updated evidence at the hearing level 19 supports a finding that the claimant is limited to light work.” AR 25. As support 20 for that finding, the ALJ cited to the August 2019 MRI of Plaintiff’s lumbar spine. 21 AR 25-26, citing AR 759. The ALJ did not include in Plaintiff’s RFC any limits 22 on reaching. 23 3. Analysis of Claimed Error. 24 Plaintiff contends that his RFC should have “left upper extremity reaching 25 limitations.” (PB at 9.) Plaintiff cites Dr. Spoor’s opinion that Plaintiff’s left arm 26 reaching is limited to “frequently,” calling this opinion “substantially supported by 27 and consistent with the medical evidence on record.” (PB at 14.) The Court, 28 therefore, understands Plaintiff to be arguing that the ALJ erred by rejecting Dr. 1 Lee’s and Dr. Spoor’s opinions about Plaintiff’s reaching limitations and should 2 have included in Plaintiff’s RFC a limitation to “frequent” left side reaching. 3 Defendant argues that even if the ALJ erred by not limiting Plaintiff to 4 frequent left side reaching, the error was harmless because two of the potential jobs 5 identified – order clerk and addressing clerk – only require frequent reaching. (CB 6 at 12-13.) Accepting the VE’s testimony about the number of positions available 7 nationally, those two jobs together provide a significant number of jobs. (CB at 8 12-13.) 9 Plaintiff only addresses this harmless error argument in a perfunctory 10 manner. (PRB at 7.) 11 The Court agrees with Defendant’s harmless error analysis. Plaintiff has not 12 met his burden on appeal of demonstrating harmful error. 13 C. ISSUE THREE: The ALJ’s Questioning of the VE. 14 At step five, the Commissioner has the burden to demonstrate that the 15 claimant can perform some work that exists in significant numbers in the national 16 or regional economy, considering the claimant’s RFC, age, education, and work 17 experience. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); 42 U.S.C. 18 § 423(d)(2)(A). An ALJ may satisfy that burden by asking a VE a hypothetical 19 question reflecting all the claimant’s limitations that are supported by the record. 20 Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); see Thomas v. Barnhart, 278 21 F.3d 947, 956 (9th Cir. 2002). 22 Plaintiff contends that the ALJ’s determination that Plaintiff could perform 23 the three identified jobs was improper because the ALJ relied on the testimony of a 24 VE who was not given a hypothetical question which included all of Plaintiff’s 25 impairments, specifically, Plaintiff’s left upper extremity reaching limitations. (PB 26 at 6, 15-18). 27 The same harmless error analysis discussed in Issue Two applies to Issue 28 Three. Plaintiff has not met his burden on appeal of demonstrating harmful error 1 caused by the ALJ’s posing a hypothetical to the VE that did not limit Plaintiff to 2 frequent left side reaching. 3 D. ISSUE FOUR: Plaintiff’s Suitable Work. 4 Again, the ALJ found that Plaintiff could work as an order clerk (18,654 5 positions available), an addressing clerk (30,697 positions available), and a hand 6 bander (21,756 positions available). AR 27. Plaintiff argues that if one considers 7 neither the hand bander job (because it requires “constant” reaching) nor the 8 addressing clerk job (because it is “obsolete”), then one is left with only 18,654 9 jobs nationally, which does not constitute a substantial number. (PB at 19.) 10 Defendant responds that the ALJ (1) properly rejected the reaching 11 limitations assessed by Drs. Lee and Spoor, so he could consider the hand bander 12 job, and (2) was entitled to rely on the VE’s testimony about the number of 13 addressing clerk jobs available. (CB at 12.) 14 1. Relevant Administrative Proceedings. 15 The ALJ questioned the VE about jobs a hypothetical worker with Plaintiff’s 16 RFC could perform. AR 48-50. The VE identified three potential jobs and 17 testified about the number of available positions. AR 50-51. Plaintiff’s counsel 18 did not question the VE about this testimony. 19 After the hearing, Plaintiff requested review of the ALJ’s decision. AR 201- 20 203. This request was exhibited by the Appeals Council. AR 1, 4. The request for 21 review does not identify any challenge to the VE’s testimony about the number of 22 available jobs. The AR does not contain any alternative evidence submitted by 23 Plaintiff on this issue. 24 2. Relevant Law. 25 a. A “Significant Number” of Jobs. 26 An “individual shall be determined to be under a disability” only if his 27 impairments prevent her from engaging in “substantial gainful work which exists 28 in the national economy”—i.e., “work which exists in significant numbers either in 1 the region where such individual lives or in several regions of the country.” 42 2 U.S.C. § 423(d)(2)(A). The burden of establishing that work exists in “significant 3 numbers” lies with the Commissioner. Tackett, 180 F.3d at 1099. 4 The Ninth Circuit has “never set out a bright-line rule for what constitutes a 5 ‘significant number’ of jobs.” Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 6 2012). “[A] comparison to other cases is instructive.” Id. In Beltran, the Ninth 7 Circuit held that 1,680 national jobs was not a significant number. See id. at 390. 8 At the other side of spectrum, the Ninth Circuit in Gutierrez v. Comm’r of SSA, 9 740 F.3d 519, 529 (9th Cir. 2014) held that the ALJ did not err in concluding that 10 25,000 national jobs, although a “close call,” constituted a significant number. In 11 so holding, Gutierrez cited with approval to an Eighth Circuit decision holding that 12 10,000 national jobs was significant. See id. (citing Johnson v. Chater, 108 F.3d 13 178, 180 (8th Cir. 1997)). Following Gutierrez, various district courts have found 14 that numbers near 21,000 constituted a significant number. See, e.g., Anna F. v. 15 Saul, 2020 WL 7024924, at *6 (C.D. Cal. Nov. 30, 2020) (“Whether 21,100 jobs in 16 the national economy is ‘significant’ is not entirely settled, yet the relevant caselaw 17 indicates it is.”; citing cases). 18 b. Substantial Evidence and Waiver. 19 District courts review an ALJ’s factual findings to determine if they lack 20 substantial evidentiary support. 42 U.S.C.S. § 405 (“The findings of the 21 Commissioner of Social Security as to any fact, if supported by substantial 22 evidence, shall be conclusive ….”). “Substantial evidence means more than a mere 23 scintilla, but less than a preponderance; it is such relevant evidence as a reasonable 24 person might accept as adequate to support a conclusion.” Garrison v. Colvin, 759 25 F.3d 995, 1009 (9th Cir. 2014) (citations omitted). 26 To obtain evidentiary support for needed findings about the number of 27 available jobs, ALJs will often solicit testimony from VEs. VEs may use a wide 28 range of data sources and methodologies to generate job-number estimates. See 1 Biestek v. Berryhill, 139 S. Ct. 1148, 1152-53 (2019) (describing different types of 2 data sources VEs may use). As recently observed by Ninth Circuit: 3 Although a VE may be cross-examined during the proceedings about 4 the data sources or methodologies underlying her job-number 5 estimates, there is no requirement that a VE disclose the primary data 6 underlying the estimates prior to, during, or after the hearing. … 7 Indeed, the Supreme Court recently held that VE job-numbers 8 testimony may constitute substantial evidence supporting a finding of 9 no disability even if the VE refuses to disclose the specific, non- 10 public data sources on which the estimates were based. Biestek, 139 11 S. Ct. at 1157. 12 White v. Kijakazi, 44 F.4th 828, 834-35 (9th Cir. 2022) (citations omitted). 13 Generally, “uncontradicted VE job-numbers testimony” is considered “inherently 14 reliable” and “ordinarily sufficient by itself to support an ALJ’s step-five finding.” 15 (Id. at 835.) A VE, however, may “offer testimony that is so feeble, or 16 contradicted, that it would fail to clear the substantial-evidence bar.” Biestek, 139 17 S. Ct. at 1155-56. The substantial evidence inquiry for VE testimony must proceed 18 on a “case-by-case” basis, taking “into account all features of vocational expert’s 19 testimony, as well as the rest of the administrative record.” Id. at 1157. 20 “Social security disability claimants must raise challenges to the accuracy of 21 a VE’s job-number estimates at some point during administrative proceedings to 22 preserve the challenge on appeal in federal district court.” Id. (citing Shaibi v. 23 Berryhill, 883 F.3d 1102, 1103 (9th Cir. 2017)). 24 3. Analysis. 25 First, Plaintiff waived any challenge to the VE’s testimony about the number 26 of available addressing clerk jobs. None of the facts presented to this about 27 obsolescence were presented to the ALJ or Appeals Council. The AR contains no 28 evidence challenging the VE’s job-numbers testimony. l Second, even if this issue were not waived, nothing in the VE’s testimony or 2 | the rest of the AR suggests that the ALJ could not rely on the VE’s testimony as 3 | substantial evidence. The number of addressing clerk jobs available nationally to 4 | which the VE testified was not so large as to be inherently unbelievable. 5 Considering only the order clerk and addressing clerk jobs, the ALJ 6 | identified more than 49,000 available jobs. Based on the cases discussed above, 7 | this constitutes a significant number of jobs. 8 V. 9 CONCLUSION 10 For the reasons stated above, IT IS ORDERED that Judgment shall be 11 | entered AFFIRMING the decision of the Commissioner denying benefits. 12 '3 | DATED: June 08, 2023 14 Tens 6, Scot? 15 KAREN E. SCOTT United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 24