1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 APRIL J.,1 Case No. 2:19-cv-07349-JC

12 Plaintiff,

MEMORANDUM OPINION

13 v. 14 ANDREW SAUL, Commissioner of 15 Social Security Administration, 16 Defendant. 17

I. SUMMARY

18 On August 23, 2019, plaintiff filed a Complaint seeking review of the 19 Commissioner of Social Security’s denial of plaintiff’s application for benefits. 20 The parties have consented to proceed before the undersigned United States 21 Magistrate Judge. 22 This matter is before the Court on the parties’ cross motions for summary 23 judgment, respectively “Plaintiff’s Motion” and “Defendant’s Motion” 24 (collectively “Motions”). The Court has taken the Motions under submission 25 26 27 1Plaintiff’s name is partially redacted to protect her privacy in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 28 Administration and Case Management of the Judicial Conference of the United States. 1 1 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management 2 Order ¶ 5. 3 Based on the record as a whole and the applicable law, the decision of the 4 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 5 (“ALJ”) are supported by substantial evidence and are free from material error. 6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 7 DECISION 8 On January 27, 2016, plaintiff filed an application for Disability Insurance 9 Benefits, alleging disability beginning on May 18, 2014, due to neck and back 10 pain, migraines, and “[l]ack of focus due to chronic head pain.” (Administrative 11 Record (“AR”) 299-304, 316). The ALJ subsequently examined the medical 12 record and heard testimony from plaintiff (who was represented by counsel) and a 13 vocational expert. (AR 94-120). 14 On June 18, 2018, the ALJ determined that plaintiff was not disabled 15 through the date of the decision. (AR 81-90). Specifically, the ALJ found: 16 (1) plaintiff suffered from the following severe impairments: spinal and shoulder 17 disorders per MRI testing, depression, and a history of meningitis with related 18 headaches and pain affecting the neck, back and shoulders (AR 83); (2) plaintiff’s 19 impairments, considered individually or in combination, did not meet or medically 20 equal a listed impairment (AR 84); (3) plaintiff retained the following residual 21 functional capacity: 22 [Plaintiff can] lift, carry, push and pull 20 pounds occasionally and 10 23 pounds frequently; she can stand and/or walk for 6 hours in an 8 hour 24 day and sit for 6 hours in an 8 hour day; she can frequently climb 25 ladders, ropes, scaffolds, ramps and stairs; she can frequently balance, 26 stoop, kneel, crouch and crawl and she is limited to occasional 27 overhead reaching with the left upper extremity and right upper 28 /// 2 1 extremity[;] [m]entally, [plaintiff] is limited to unskilled work and is 2 precluded from fast paced work. 3 (AR 85); (4) plaintiff could not perform any past relevant work (AR 88); (5) there 4 are jobs that exist in significant numbers in the national economy that plaintiff 5 could perform, specifically marker, cafeteria attendant, and sales attendant (AR 6 89-90); and (6) plaintiff’s statements regarding the intensity, persistence, and 7 limiting effects of subjective symptoms were not entirely consistent with the 8 medical evidence and other evidence in the record (AR 88). 9 On June 20, 2019, the Appeals Council denied plaintiff’s application for 10 review. (AR 1-3). 11 III. APPLICABLE LEGAL STANDARDS 12 A. Administrative Evaluation of Disability Claims 13 To qualify for disability benefits, a claimant must show that she is unable 14 “to engage in any substantial gainful activity by reason of any medically 15 determinable physical or mental impairment which can be expected to result in 16 death or which has lasted or can be expected to last for a continuous period of not 17 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 18 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted); 20 C.F.R. 19 §§ 404.1505(a), 416.905. To be considered disabled, a claimant must have an 20 impairment of such severity that she is incapable of performing work the claimant 21 previously performed (“past relevant work”) as well as any other “work which 22 exists in the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 23 1999) (citing 42 U.S.C. § 423(d)). 24 To assess whether a claimant is disabled, an ALJ is required to use the five- 25 step sequential evaluation process set forth in Social Security regulations. See 26 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) 27 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520, 28 416.920). The claimant has the burden of proof at steps one through four – i.e., 3 1 || determination of whether the claimant was engaging in substantial gainful activity 2 || (step 1), has a sufficiently severe impairment (step 2), has an impairment or 3 || combination of impairments that meets or medically equals one of the conditions 4 || listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and 5 || retains the residual functional capacity to perform past relevant work (step 4). 6 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The 7 || Commissioner has the burden of proof at step five — 7.e., establishing that the 8 | claimant could perform other work in the national economy. Id. 9 B. Federal Court Review of Social Security Disability Decisions 10 A federal court may set aside a dental of benefits only when the 11 || Commissioner’s “final decision” was “based on legal error or not supported by 12 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 13 | F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The 14 || standard of review in disability cases is “highly deferential.” Rounds v. Comm’r 15 || of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation 16 || marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could 17 || reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at 18 || 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must 19 || be affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. 20 | Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if 21 | (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path 22 || may reasonably be discerned despite the error) (citation and quotation marks 23 || omitted). 24 Substantial evidence is “such relevant evidence as a reasonable mind might 25 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining 26 || “substantial evidence” as “more than a mere scintilla, but less than a 27 || preponderance’) (citation and quotation marks omitted). When determining 28 || whether substantial evidence supports an ALJ’s finding, a court “must consider the

1 || entire record as a whole, weighing both the evidence that supports and the 2 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v. 3 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). 4 Federal courts review only the reasoning the ALJ provided, and may not 5 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 6 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need 7 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 8 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 9 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099). 10 A reviewing court may not conclude that an error was harmless based on 11 || independent findings gleaned from the administrative record. Brown-Hunter, 806 12 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently 13 || conclude that an error was harmless, a remand for additional investigation or 14 | explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 15 | (9th Cir. 2015) (citations omitted). 16], IV. DISCUSSION 17 Plaintiff argues that the ALJ erred (1) in assessing her mental impairments 18 || in the residual functional capacity (“RFC”) finding and (2) in discrediting her 19 || testimony regarding her symptoms and limitations. (Plaintiff's Motion at 5-14). 20 || For the reasons discussed below, plaintiff has not shown that a reversal or remand 21 || is required on either of these grounds. 22 A. Substantial Evidence Supports the ALJ’s Assessment of 23 Plaintiff’s Mental Impairments 24 1. Pertinent Law 25 Before proceeding to steps four and five, an ALJ must first assess the 26 || claimant’s RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e); Social Security Ruling 27 | /// 28 | ///

1 || (“SSR”) 96-8P at *1.* The RFC represents “the most [a claimant] can still do 2 || despite [his or her] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 3 || When assessing RFC, an ALJ must evaluate “on a function-by-function basis” 4 || how particular impairments affect a claimant’s abilities to perform basic physical, 5 | mental, or other work-related functions. SSR 96-8P at *1 (citing 20 C.F.R. 6 || §§ 404.1545(b)-(d), 416.945(b)-(d)). An ALJ must account for limitations caused 7 || by all of a claimant’s impairments, even those that are “not severe.” SSR 96-8P at 8 | *5 Ganternal quotation marks omitted). In addition, an ALJ must consider all 9 || relevant evidence in the record, including medical records, lay evidence, and the 10 || effects of a claimant’s subjective symptoms (i.e., pain), that may reasonably be 11 || attributed to a medically determinable impairment. Robbins v. Soc. Sec. Admin., 12 || 466 F.3d 880, 883 (9th Cir. 2006) (citations omitted); see 20 C.F.R. 13 | §§ 404.1545(a)(1), 416.945(a)(1). 14 ALJs have an “independent duty” to help claimants “fully and fairly develop 15 || the record” at every step of the sequential evaluation process. Tonapetyan v. 16 || Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citations and internal quotation 17 || marks omitted). An ALJ may satisfy this duty, in part, by ordering a consultative 18 || examination, but the ALJ has “broad latitude in deciding whether to do so. See 19 || Reed v. Massanari, 270 F.3d 838, 841-42 (9th Cir. 2001) (citations omitted). An 20 || ALJ’s duty to develop the record further is triggered only when the existing 21 || administrative record contains “ambiguous evidence” or is “inadequate to allow 22 || for proper evaluation of the [medical] evidence.” McLeod v. Astrue, 640 F.3d 23, | 74 *Social Security Rulings reflect the Social Security Administration’s (“SSA”) official interpretation of pertinent statutes, regulations, and policies. 20 C.F.R. § 402.35(b)(1). Although 25 || they “do not carry the ‘force of law,’” Social Security Rulings “are binding on all components of 6 the ... Administration[,]” and are entitled to deference if they are “consistent with the Social Security Act and regulations.” 20 C.F.R. § 402.35(b)(1); Bray v. Comm’r of Soc. Sec. Admin., 27 || 554 F.3d 1219, 1224 (9th Cir. 2009) (citations and quotation marks omitted); see also Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984) (discussing weight and function of Social Security 28 rulings).

1 881, 885 (9th Cir. 2011) (citation omitted); see also 20 C.F.R. § 404.1519a(b) 2 (ALJ may order consultative examination “to try to resolve an inconsistency in the 3 evidence, or when the evidence as a whole is insufficient to [ALJ] to make a 4 determination or decision on [] claim”). 5 2. ALJ’s Findings 6 The ALJ found, at step two, that plaintiff’s depression is a severe 7 impairment. (AR 83). In assessing whether plaintiff met the criteria for any listed 8 impairments, the ALJ determined that plaintiff’s mental impairments limited her to 9 (1) “a moderate restriction in understanding, remembering, or applying 10 information”; (2) “no limitation related to interacting with others”; (3) “a moderate 11 limitation with regard to concentrating, persisting, or maintaining pace”; and 12 (4) “a moderate limitation related to adapting or managing oneself.” (AR 84-85). 13 When assessing plaintiff’s RFC, the ALJ noted that the record reflects 14 diagnosis and treatment for depression during the relevant period, but found that 15 the treatment record was “scant” with respect to this condition. (AR 87). The ALJ 16 observed that plaintiff “attended biweekly therapy sessions from August 24, 2016 17 through April 2018.” (AR 87) (citing AR 946). The ALJ noted mental health 18 treatment records from March 2018 reflecting a diagnosis of “major depressive 19 disorder, recurrent, moderate” and an “improved mood” with medication 20 (Zyprexa). (AR 87) (citing AR 818). The ALJ also noted that a mental status 21 examination on October 26, 2017, revealed “a depressed and anxious mood, a 22 constricted affect, avoidant eye contact and slowed activity,” but the ALJ 23 determined that the examination findings were “otherwise unremarkable and 24 showed a logical thought process, a normal thought content, normal cognition, and 25 normal insight and judgment.” (AR 87-88) (citing AR 836). The ALJ also took 26 into account the assessment of plaintiff’s pain management specialist, Dr. 27 Salvatore Danna, that plaintiff’s pain prevents her from engaging in work that 28 requires “mental agility.” (AR 88; see AR 525). 7 1 Overall, the ALJ determined “that the combination of [plaintiff’s] pain and 2 depressive conditions reasonably impose mental restrictions precluding the 3 performance of detailed, complex work and fast paced work,” but there was no 4 medical evidence that “would indicate an inability to perform unskilled work that 5 is not at a fast pace.” (AR 88). Thus, in assessing plaintiff’s mental RFC, the ALJ 6 found only that plaintiff “is limited to unskilled work and is precluded from fast- 7 paced work.” (AR 85). 8 3. Analysis 9 Plaintiff contends that the ALJ impermissibly “relied on [his] own lay 10 understanding to interpret the medical records and examination results to assess 11 the seriousness of [plaintiff’s] mental limitations in functional terms,” and the ALJ 12 “should have more fully and fairly developed the ambiguous record in this case,” 13 by ordering consultative examinations. (Plaintiff’s Motion at 6-8). Plaintiff 14 additionally disputes the ALJ’s review of the evidence regarding her mental 15 impairments and mental health treatment, including the ALJ’s reference to her 16 “improved mood” in one treatment note from March 9, 2018. (Id. at 7). Plaintiff 17 contends that this same treatment note also reflects plaintiff’s reports that she was 18 “feeling down, depressed or hopeless, and had little interest or pleasure in doing 19 things at the time.” (Id.) (citing AR 816, 818). Plaintiff points, as well, to records 20 showing that, in November 2016, she “presented with inappropriate mood affect” 21 (see AR 598); in December 2016, she “disclosed auditory hallucinations of 22 hearing two men plotting to kill her” (see AR 697); in February 2017, she 23 “presented with anxious and irritable mood and constricted affect,” her “posture 24 was tense, eye contact was intense, and activity was slowed,” and her “ attitude 25 towards the examiner was evasive/anxious and demanding” (see AR 675); in April 26 2017, she “presented with depressed mood and tearful affect” (see AR 651); in 27 June 2017, she “presented with tense posture, avoided eye contact, anxious mood 28 and constricted affect,” and she “reported auditory hallucination and paranoid 8 1 thought content” (see AR 618); and in October 2017, she presented with depressed 2 and anxious mood, constricted affect, tense posture, avoidant eye contact, and 3 slowed activity, and was described as evasive and anxious toward the examiner 4 (see AR 836). (Plaintiff’s Motion at 7). 5 Notwithstanding these contentions, substantial evidence supports the ALJ’s 6 assessment of plaintiff’s mental RFC limiting plaintiff to unskilled, non-fast-paced 7 work. (AR 85). At the time of the decision, plaintiff had been receiving mental 8 health treatment for less than two years, beginning on August 24, 2016, and the 9 record reflects that she experienced some improvement during that time. (See AR 10 818, 946). At the hearing, plaintiff testified that her symptoms had improved with 11 treatment, though she stated that it is “still hard,” as she “still sometimes” 12 experiences symptoms of paranoia, causing her to “look over [her] shoulder.” (AR 13 112-13). Plaintiff did not testify that any symptoms from her mental conditions 14 significantly limit her ability to function. While plaintiff contends, here, that her 15 medical records have continued to document symptoms such as anxious mood, 16 constricted affect, and reports of paranoid episodes, the ALJ appropriately 17 acknowledged such evidence, while also accurately noting plaintiff’s generally 18 normal mental status examination findings, as reflected in numerous records, 19 including logical thought process, normal thought content, normal cognition, and 20 normal insight and judgment. (AR 87-88; see AR 736, 740, 748, 753, 758, 764, 21 836). 22 The evidence in the record does not indicate any significant limitation in 23 mental functioning beyond what the ALJ assessed in the mental RFC. Moreover, 24 plaintiff has failed to demonstrate that the evidence in the record was ambiguous 25 or otherwise inadequate to support the ALJ’s evaluation of plaintiff’s mental 26 limitations. Accordingly, substantial evidence supports the ALJ’s mental RFC 27 determination, and the ALJ had no duty to develop the record further. 28 /// 9 1 B. The ALJ Did Not Err in Discrediting Plaintiff’s Testimony 2 1. Pertinent Law 3 When determining disability, an ALJ is required to consider a claimant’s 4 impairment-related pain and other subjective symptoms at each step of the 5 sequential evaluation process. 20 C.F.R. §§ 404.1529(a), (d). Accordingly, when 6 a claimant presents “objective medical evidence of an underlying impairment 7 which might reasonably produce the pain or other symptoms [the claimant] 8 alleged,” the ALJ is required to determine the extent to which the claimant’s 9 statements regarding the intensity, persistence, and limiting effects of his or her 10 subjective symptoms (“subjective statements” or “subjective complaints”) are 11 consistent with the record evidence as a whole and, consequently, whether any of 12 the individual’s symptom-related functional limitations and restrictions are likely 13 to reduce the claimant’s capacity to perform work-related activities. 20 C.F.R. 14 §§ 404.1529(a), (c)(4); SSR 16-3p, 2017 WL 5180304, at *4-10.3 When an 15 individual’s subjective statements are inconsistent with other evidence in the 16 record, an ALJ may give less weight to such statements and, in turn, find that the 17 individual’s symptoms are less likely to reduce the claimant’s capacity to perform 18 work-related activities. See SSR 16-3p, 2017 WL 5180304, at *8. In such cases, 19 when there is no affirmative finding of malingering, an ALJ may “reject” or give 20 less weight to the individual’s subjective statements “only by providing specific, 21 22 3Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the 23 term “credibility” from SSA “sub-regulatory policy[]” in order to “clarify that subjective 24 symptom evaluation is not an examination of an individual’s [overall character or truthfulness] . . . [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See SSR 25 16-3p, 2017 WL 5180304, at *1-*2, *10-*11. The SSA subsequently republished SSR 16-3p making no change to the substantive policy interpretation regarding evaluation of a claimant’s 26 subjective complaints, but clarifying that the SSA would apply SSR 16-3p only “[when making] 27 determinations and decisions on or after March 28, 2016[,]” and that federal courts should apply “the rules [regarding subjective symptom evaluation] that were in effect at the time” an ALJ’s 28 decision being reviewed became final. SSR 16-3p, 2017 WL 5180304, at *1, *13 n.27. 10 1 || clear, and convincing reasons for doing so.” Brown-Hunter, 806 F.3d at 488-89." 2 || This requirement is very difficult to satisfy. See Trevizo, 871 F.3d at 678 (“The 3 || clear and convincing standard is the most demanding required in Social Security 4 || cases.”’) (citation and quotation marks omitted). 5 An ALJ’s decision “must contain specific reasons” supported by substantial 6 || evidence in the record for giving less weight to a claimant’s statements. SSR 16- 7 || 3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective 8 || statement being rejected and the particular evidence in the record which 9 || purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation 10 | omitted). Unless there is affirmative evidence of malingering, the Commissioner’s 11 || reasons for rejecting a claimant’s testimony must be “clear and convincing.” 12 || Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotation marks 13 || omitted), as amended (Apr. 9, 1996). “General findings are insufficient[.]” 14 || Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted). 15 If an ALJ’s evaluation of a claimant’s statements is reasonable and is 16 || supported by substantial evidence, it is not the court’s role to second-guess it. See 17 || Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). When 18 || an ALJ fails properly to discuss a claimant’s subjective complaints, however, the 19 || error may not be considered harmless “unless [the Court] can confidently conclude 20 || that no reasonable ALJ, when fully crediting the testimony, could have reached a 21 || different disability determination.” Stout, 454 F.3d at 1056; see also Brown- 22 || Hunter, 806 F.3d at 492 (ALJ’s erroneous failure to specify reasons for rejecting 23 || claimant testimony “will usually not be harmless’’). 24 25 6 “It appears to this Court, based upon its research of the origins of the requirement that there be “specific, clear and convincing” reasons to reject or give less weight to an individual’s 27 || subjective statements absent an affirmative finding of malingering, that such standard of proof remains applicable even when SSR 16-3p governs. See Trevizo, 871 F.3d at 678-79 & n.5 28 (citations omitted). 11

1 2. Plaintiff’s Statements and Testimony 2 On March 28, 2016, plaintiff completed a Headache Questionnaire stating 3 the following: She suffered constant headaches on a daily basis, described as a 4 sharp, stabbing pain accompanied by pressure, all over her head, making it 5 difficult to move or focus. (AR 325-26). The pain increases with “any body 6 movement,” talking or loud noises, heat, and stress. (AR 325-26). To alleviate it, 7 she takes pain medication and lies down for hours with bags of ice on her head, 8 which enables her “to get up and move for a short time” (AR 325). The 9 medications have helped reduce the pain, “but nothing takes the pain away 10 completely.” (AR 327). 11 At the hearing on May 24, 2018, plaintiff testified to the following: 12 She last worked in May 2014, when she was hospitalized with viral meningitis, 13 and was “bedridden” for “a long time” after. (AR 102-03). The condition caused 14 plaintiff’s headaches, back pain, and neck pain, and “the pain never stopped.” 15 (AR 102-04, 114). Plaintiff now “feels like [she] can’t live [her] life.” (AR 104). 16 She experiences “very bad migraines constantly during the day,” that on some 17 days feel like she is being kicked all over her head. (AR 107-08). Doctors have 18 told her that surgery is not an option, and have recommended physical therapy. 19 (AR 114). She went to physical therapy twice a week for “a couple weeks,” but 20 had not gone for “over a month.” (AR 116). The physical therapy included 21 massages, which help “for the moment” to “relieve that tension,” but “exercises 22 flare it up.” (AR 114). She has also been experiencing anxiety and paranoia for a 23 little over a year, for which she has been taking medication and seeing a counselor 24 every two weeks. (AR 111-12). These symptoms have improved with treatment. 25 (AR 112-13). 26 Plaintiff further testified: She lives with her elderly father and two children 27 (ages 16 and 22). (AR 99). She is “pretty much at home all the time.” (AR 102). 28 When she awakes in the morning, she is “good for maybe three hours” of activity. 12 1 (AR 100). She drops her daughter off at school, runs the dishwasher, has a bowl 2 of cereal, and then must lie down and ice her head. (AR 100). She basically lies 3 down in bed for the rest of the day, watching television, and then gets up for 4 dinner. (AR 100-01, 105-06). She gets up on some days to pick her daughter up 5 from school. (AR 100-01). 6 She additionally testified: She can sit for only a half hour, and stand for 7 “less than a minute” before her back starts hurting. (AR 101-02). She cannot 8 walk for “very long.” (AR 106). She can lift a couple of pounds, but not ten 9 pounds. (AR 106-07). She does the laundry with her daughter, and she cooks 10 meals, sometimes with the help of her daughter or her son’s girlfriend. (AR 104- 11 05). She shops for groceries, drives her father to doctors’ appointments about 12 twice a month, and drives herself to appointments about once a week, sometimes 13 more, though it “hurts” to do so. (AR 99, 101, 105). When she shops, “the people 14 at the store help [her] to get milk or anything else,” and her children carry the 15 groceries inside when she gets home. (AR 106). 16 3. ALJ’s Findings 17 The ALJ found that plaintiff’s “medically determinable impairments could 18 reasonably be expected to cause symptoms,” but determined that her “statements 19 concerning the intensity, persistence and limiting effects of these symptoms” were 20 “not entirely consistent with the medical evidence and other evidence in the record 21 for the reasons explained in th[e] decision.” (AR 88). The ALJ found that 22 plaintiff’s allegations of constant, daily, debilitating pain and“markedly limited 23 functioning” were inconsistent with the treatment and consultative examination 24 records, as well as the objective findings and treatment records, which “show 25 improvement of pain with treatment,” according to the ALJ. (AR 88). The ALJ 26 noted, for example, a treatment record from May 28, 2015, indicating that 27 plaintiff’s reported that she felt “generally well,” that her treatment with Dr. Danna 28 had resulted in “better control” of pain symptoms, and that she experienced a 13 1 “large decrease in pain” following osteopathic manipulative treatment. (AR 86) 2 (citing AR 445). The ALJ also noted a record from September 14, 2017, 3 indicating that plaintiff’s “pain ha[d] improved,” and a record on December 11, 4 2017, reflecting that plaintiff was “doing well.” (AR 86-87) (citing AR 828 (Dec.), 5 838 (Sept.)). In addition, the ALJ pointed to “multiple” occasions in the treatment 6 records where plaintiff’s pain was assessed as a 0 out of 10. (AR 86) (citing AR 7 807, 816, 836, 843, 874). The ALJ also took into account that Dr. Danna had 8 remarked that plaintiff could perform housework and light chores. (AR 86, 88) 9 (citing AR 525). The ALJ found, moreover, that plaintiff’s claim of disability was 10 inconsistent with her failure to follow up with physical therapy treatment, despite 11 showing some improvement. (AR 87) (citing AR 944). 12 The ALJ also reviewed a consultative internal medical evaluation by Dr. Jay 13 Dhiman, which revealed “hypertrophy of the nasal turbinates and tenderness of the 14 occipital nerves consistent with occipital neuralgia,” as well as “muscle spasm and 15 tenderness of the paracervical and trapezius muscles,” but it also showed “no 16 cervical radicular signs or symptoms,” along with a normal gait, normal 17 coordination, intact sensation and motor function, and normal range of motion in 18 the shoulder and lumbar and cervical spine. (AR 87) (citing AR 498-503). 19 4. Analysis 20 Upon review of the record, the Court concludes that the ALJ provided 21 specific, clear and convincing, legitimate reasons to discount plaintiff’s 22 allegations, based on inconsistencies with the treatment records, objective 23 examinations, and daily activities, along with plaintiff’s failure to follow up with 24 prescribed treatment. These findings are supported by substantial evidence in the 25 record. 26 Plaintiff disputes the ALJ’s finding that her symptoms improved with 27 treatment. (Plaintiff’s Motion at 11). She contends that the ALJ failed to consider 28 the records in context. (Id. at 11-12). Plaintiff notes, for example, that when a 14 | || treatment record described her as doing “generally well,” on May 28, 2015, she 2 || had been prescribed powerful medications, including fentanyl, Percocet, and 3 || sumatriptan. (Id. at 11) (citing AR 86, 445). Plaintiff also points out that despite 4 || Dr. Danna’s report of improvement with treatment on September 14, 2015, 5 || plaintiff continued to suffer from headaches and appeared with “disuse atrophy 6 || and deconditioning.” (Id. at 12) (quoting AR 518). When Dr. Danna observed 7 || plaintiff's improvement on April 28, 2017, the doctor also noted that plaintiff 8 || presented as “a weakened and pallored individual” who continued to experience 9 || muscle strain, spasms of cervical spine with tension, and traction cephalgia. (Id.) 10 | (quoting AR 507). Similarly, plaintiff disputes the ALJ’s reliance on records 11 | rating plaintiff's pain as a 0 out of 10 because, plaintiff contends, “‘other records 12 || during the same period showed [plaintiff] complaining of headaches to various 13 || providers.” (Id. at 13) (citing AR 838, 913, 937). Plaintiff asserts that the record, 14 || as a whole, “demonstrates ongoing complaints of headaches not inconsistent with 15 | [plaintiff's] testimony.” (Id.). 16 Notwithstanding these contentions, plaintiff fails to show that the ALJ 17 || overlooked material evidence or otherwise erred in considering the medical 18 || treatment records when evaluating plaintiff's symptom testimony. Plaintiff 19 || testified that her pain was daily, constant and unremitting. (See AR 107, 325, 20 || 327). Thus, even if the records reflect that there was still pain on some days, the 21 || ALJ reasonably found that plaintiffs allegations were inconsistent with the record 22 || overall, which indicated at least periodic improvement and relief from pain. See, 23 || Bailey v. Colvin, 659 F. App’x 413, 415 (9th Cir. 2016) (evidence that 24 || “impairments had been alleviated by effective medical treatment,” to the extent 25 || inconsistent with “alleged total disability[,]” specific, clear, and convincing reason 26 || for discounting subjective complaints) (citing Warre v. Comm’r of Soc. Sec 27 || Admin, 439 F.3d 1001, 1006 (9th Cir. 2006)). 28 | /// 15

1 Plaintiff contends that the ALJ improperly relied on her activities of daily 2 living to reject her testimony. (Plaintiff’s Motion at 13). She argues that the ALJ 3 inaccurately characterized her testimony “as describing a bedridden individual,” 4 despite that she testified to performing some light housework and chores. (Id. at 5 12-13). Plaintiff asserts that the ALJ thereby “attempt[ed] to manufacture an 6 inconsistency between [plaintiff’s] testimony and the medical records” by 7 distorting plaintiff’s account of her daily activities. (Id. at 12). 8 However, even if plaintiff did not claim to be entirely bedridden, the ALJ 9 accurately observed that plaintiff “testified that she basically was homebound and 10 performed minimal activities due to headaches.” (AR 86). Plaintiff testified that 11 she was “pretty much at home all the time” (AR 102), and that she could manage 12 only about three hours of activity in the morning, during which she drops her 13 daughter at school, runs the dishwasher “if [she is] able,” and has a bowl of cereal 14 (AR 100). After that, according to plaintiff, she lies down in bed “for the rest of 15 the day.” (AR 100-01). She also stated that she can sit for only a half hour, and 16 stand for “less than a minute” before her back starts hurting. (AR 101-02). 17 Despite this, upon questioning, plaintiff also acknowledged that she prepares 18 meals, does laundry with her daughter, shops for groceries, drives herself and her 19 father to doctors’ appointments, and picks her daughter up from school. (AR 101, 20 104-05). The extent of these activities undermines plaintiff’s claim that she could 21 basically only function, in a very limited fashion, for about three hours in the 22 morning, and must spend the rest of the time in bed due to severe, constant pain. 23 The record thus supports the ALJ’s impression that plaintiff was capable of more 24 activity than many of her statements suggested, and she seemed to downplay the 25 extent of her activities and abilities. See Reddick, 157 F.3d at 722 (ALJ may 26 consider daily activities to extent plaintiff’s “level of activity [is] inconsistent with 27 [the] . . . claimed limitations”); cf. Molina, 674 F.3d at 1113 (“Even where 28 [claimant’s] activities suggest some difficulty functioning, they may be grounds 16 1 || for [giving less weight to] the claimant’s testimony to the extent that they 2 || contradict claims of a totally debilitating impairment.”) (citations omitted); see, 3 || e.g., Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (claimant’s ability to 4 || “take care of her personal needs, prepare easy meals, do light housework and shop 5 || for some groceries . . . may be seen as inconsistent with the presence of a 6 || condition which would preclude all work activity”) (citing Fair v. Bowen, 885 7 | F.2d 597, 604 (9th Cir. 1989)). 8 Plaintiff argues that the ALJ improperly relied on her failure to follow up 9 || with physical therapy treatment. (Plaintiff's Motion at 13). Plaintiff contends that 10 || there was “a good reason for the noncompliance” here because physical therapy 11 || was not helpful. (Id.). She points to her testimony that physical therapy made her 12 | symptoms flare up. (Id.) (citing AR 114, 116). She also asserts that when she 13 | “tried physical therapy in the past,” Dr. Danna noted in November 2016 that it was 14 | not helpful, and worsened plaintiff's neck and back pain. (Id.) (citing AR 511). 15 However, plaintiff's physical therapist did in fact remark that plaintiff “had 16 || made slight improvements,” after just six sessions in November and December 17 | 2017. (AR 944; see AR 936-43). At the hearing, plaintiff stated that she did the 18 || therapy for just couple weeks” before stopping. (AR 116). She indicated that 19 || her doctors had prescribed physical therapy as essentially her only treatment 20 || option (aside from pain medications). (AR 114, 117). Plaintiff acknowledged that 21 || the massages, which were part of the physical therapy, provided some relief. (AR 22 || 114). She stated that “[t]he exercises flare it up, so they do like really light 23 || exercises.’”” (AR 114). According to the physical therapy provider, plaintiff was 24 || discharged because she “did not follow up to continue with treatments.” (AR 25 || 944). Considering that plaintiff discontinued this prescribed treatment after just a 26 2700 This statement arguably suggests that the “really light exercises” did not cause serious 28 flaring up. 17

1 brief period in which she demonstrated some improvement and felt some relief, 2 the ALJ reasonably relied on this as a further basis to discount plaintiff’s 3 testimony.6 See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (in 4 discrediting the claimant’s subjective symptom testimony, the ALJ may consider 5 “unexplained or inadequately explained failure to seek treatment or to follow a 6 prescribed course of treatment”); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) 7 (“Our case law is clear that if a claimant complains about disabling pain but fails 8 to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ may 9 use such failure as a basis for finding the complaint unjustified or exaggerated.”) 10 (citing Fair, 885 F.2d at 603). 11 Accordingly, plaintiff has failed to identify any material error in the ALJ’s 12 evaluation of the her subjective testimony regarding her symptoms and limitations. 13 V. CONCLUSION 14 For the foregoing reasons, the decision of the Commissioner of Social 15 Security is AFFIRMED. 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 DATED: May 19, 2020 18 _____________/s/____________________ Honorable Jacqueline Chooljian 19

UNITED STATES MAGISTRATE JUDGE

20 21 22 23 24 25 26 6The ALJ specifically stated that “physical therapy records reflect that [plaintiff] was 27 discharged from treatment, despite slight improvements with therapy, due to [plaintiff’s] failure to follow up with treatment.” (AR 87) (citing AR 944). The ALJ found that plaintiff’s 28 “noncompliance with treatment is inconsistent with her assertions of disability.” (AR 87). 18