1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EVIE C. G., Case No. 2:20-CV-03200 (KES) 12 Plaintiff,

13 v. MEMORANDUM OPINION AND

ORDER

14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16

17 18 I. 19 BACKGROUND 20 In July and August 2016, Plaintiff Evie C. G. (“Plaintiff”) applied for Titles 21 II and XVI Social Security disability benefits, alleging that she became disabled on 22 January 1, 2014, due to “depression, anxiety, fibromyalgia, menopause, and 23 hypertension.” Administrative Record (“AR”) 500–01, 506–12, 531. On 24 November 1, 2018, an Administrative Law Judge (“ALJ”) conducted a hearing at 25 which Plaintiff, who was represented by counsel, appeared and testified, as did a 26 vocational expert (“VE”) and a medical expert (“ME”). AR 57–88. 27 On January 28, 2019, the ALJ issued an unfavorable decision. AR 17–29. 28 The ALJ found that Plaintiff suffered from medically determinable impairments of 1 obesity, fibromyalgia, major depressive disorder, and generalized anxiety disorder. 2 AR 20. Despite these impairments, the ALJ found that Plaintiff had a residual 3 functional capacity (“RFC”) to perform a reduced range of unskilled, sedentary 4 work with restrictions on social interactions. AR 22. 5 In making this finding, the ALJ discussed five medical sources who offered 6 opinions of Plaintiff’s physical RFC: (1) consultative examiner Marvin Perer, M.D., 7 who opined that Plaintiff could do light work; (2 & 3) agency consultants B. 8 Sheehy, M.D., and J. Rule, M.D., who opined that Plaintiff could do light work; 9 (4) treating physician David Proum, M.D., who opined that Plaintiff could not 10 perform “even less than sedentary work”; and (5) ME Minh D. Vu, M.D., who 11 found no physical limitations on Plaintiff’s functioning. AR 24. The ALJ gave the 12 greatest weight to Dr. Perer’s opinions but assessed a more restrictive, sedentary 13 RFC due to “consideration [of Plaintiff’s] subjective complaints and testimony and 14 her treatment history.” AR 24. 15 The ALJ also evaluated the three medical sources who offered opinions of 16 Plaintiff’s mental RFC: (1) consultative examiner Pramual Pinanong, M.D., who 17 opined that Plaintiff was able to follow simple one- or two-step instructions; 18 (2) agency consultant Cal VanderPlate, Ph.D., who opined that Plaintiff was limited 19 to performing simple instructions with infrequent interaction with the general 20 public; and (3) agency consultant Debra Lilly, Ph.D., who opined that Plaintiff was 21 limited to simple, routine, and repetitive tasks in a low-stress environment. AR 25– 22 26. The ALJ gave the greatest weight to the agency consultants’ opinions because 23 the record supported only moderate limitations in Plaintiff’s ability to interact with 24 others and to concentrate, persist, or maintain pace, which the ALJ accommodated 25 by limiting Plaintiff to unskilled work with only occasional interaction with others. 26 AR 26. 27 Based on this RFC and the VE’s testimony, the ALJ found that Plaintiff 28 could not perform her past relevant work as a lab technician but that there were jobs 1 that existed in significant numbers in the national economy she could perform, 2 including document specialist and touch up trainer. AR 27–29. The ALJ therefore 3 concluded that Plaintiff was not disabled from January 1, 2014, through the date of 4 his decision. AR 29. 5 II. 6 ISSUE PRESENTED 7 This appeal presents the sole issue of whether the ALJ erred in evaluating 8 Plaintiff’s subjective symptom testimony. (Dkt. 18, Joint Stipulation [“JS”] at 4.) 9 III. 10 DISCUSSION 11 A. Rules Governing Consideration of Subjective Symptom Statements. 12 The Ninth Circuit has “established a two-step analysis for determining the 13 extent to which a claimant’s symptom testimony must be credited.” Trevizo v. 14 Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “First, the ALJ must determine 15 whether the claimant has presented objective medical evidence of an underlying 16 impairment which could reasonably be expected to produce the pain or other 17 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) 18 (citation omitted). “Second, if the claimant meets the first test, and there is no 19 evidence of malingering, the ALJ can reject the claimant’s testimony about the 20 severity of her symptoms only by offering specific, clear and convincing reasons 21 for doing so.” Id. (citation omitted). If the ALJ’s assessment “is supported by 22 substantial evidence in the record, [courts] may not engage in second-guessing.” 23 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 24 Effective March 17, 2017, the Commissioner amended the applicable 25 regulations on how an ALJ should evaluate a claimant’s subjective symptom 26 statements. 20 C.F.R. §§ 404.1529, 416.929. These regulations provide in part: 27 In evaluating the intensity and persistence of your symptoms, 28 including pain, we will consider all of the available evidence, 1 including your medical history, the medical signs and laboratory 2 findings, and statements about how your symptoms affect you. We 3 will then determine the extent to which your alleged functional 4 limitations and restrictions due to pain or other symptoms can 5 reasonably be accepted as consistent with the medical signs and 6 laboratory findings and other evidence to decide how your symptoms 7 affect your ability to work. … We will consider whether there are any 8 inconsistencies in the evidence and the extent to which there are any 9 conflicts between your statements and the rest of the evidence, 10 including your history, the signs and laboratory findings, and 11 statements by your medical sources or other persons about how your 12 symptoms affect you. Your symptoms, including pain, will be 13 determined to diminish your capacity for basic work activities to the 14 extent that your alleged functional limitations and restrictions due to 15 symptoms, such as pain, can reasonably be accepted as consistent with 16 the objective medical evidence and other evidence. 17 Id. §§ 404.1529(a) & (c)(4), 416.929(a) & (c)(4); see SSR 16-3p (clarifying that 18 “subjective symptom evaluation is not an examination of an individual’s 19 character”). Because the ALJ issued his decision in January 2019, these regulations 20 apply to Plaintiff’s case. 21 B. Plaintiff’s Subjective Statements. 22 In September 2016, Plaintiff submitted an Adult Function Report. AR 552– 23 60. She asserted an inability to walk, stand, or sit for long periods, and an inability 24 to concentrate or lift heavy objects. AR 552. She could not prepare her own meals 25 or do house or yard work. AR 554. She denied being able to drive but was able to 26 shop once a week. AR 555. She used a walker, cane, or wheelchair to ambulate. 27 AR 558. 28 1 In December 2016, Plaintiff reported to Agency personnel that due to pain 2 and depression, she stayed in bed most of the day. AR 583. She was unable to 3 stand for more than 20 minutes, walk more than one block, or sit for more than an 4 hour. AR 587. She could not do any daily activities without assistance from her 5 daughter. AR 587. In March 2017, Plaintiff reported needing assistance to shower, 6 wash hair, and shave. AR 600. 7 At her November 2018 hearing, Plaintiff testified that she experienced pain 8 from her fibromyalgia that radiated from her shoulders down her back and legs. 9 AR 67. She asserted an inability to sit for more than two hours or lift more than ten 10 pounds. AR 68–69. Plaintiff reported ambulating with the assistance of a cane, 11 walker, or wheelchair. AR 69, 76–77. She could not do household chores but was 12 able to drive for short periods of time. AR 70. She spent four to six hours a day 13 lying down and two days a week spent the whole day in bed. AR 71, 73. Plaintiff 14 stated that due to her pain and an inability to concentrate, she was unable to work. 15 AR 72. 16 C. The ALJ’s Decision. 17 In evaluating Plaintiff’s symptom testimony, the ALJ stated as follows: 18 After careful consideration of the evidence, the undersigned 19 finds that [Plaintiff’s] medically determinable impairments could 20 reasonably be expected to cause the alleged symptoms; however, 21 [Plaintiff’s] statements concerning the intensity, persistence and 22 limiting effects of these symptoms are not entirely consistent with 23 medical evidence and other evidence in the record for the reasons 24 explained in this decision. 25 AR 23–24. 26 Plaintiff argues that what follows in the ALJ’s decision are not reasons for 27 discounting her testimony but rather a summary of the medical evidence. (JS at 9.) 28 Plaintiff contends that the ALJ’s “rationale is insufficient because he did not even 1 attempt to provide any other reason aside from the purported lack of objective 2 support.” (Id. at 10.) The Commissioner asserts that the ALJ offered three reasons 3 for partially discounting Plaintiff’s subjective statements: (1) lack of objective 4 medical support, (2) the limited nature of Plaintiff’s treatment history, and (3) her 5 positive response to treatment. (JS at 17–18.) Indeed, the ALJ found that his RFC 6 assessment was “well-supported based upon [Plaintiff’s] subjective complaints, her 7 treatment history, the effectiveness of treatment in reducing her symptoms, and the 8 objective findings.” AR 27 (emphasis added). 9 Plaintiff contends that this summation sentence is just “boilerplate” which 10 fails to show inconsistency between Plaintiff’s testimony and her treatment history. 11 (JS at 19.) However, the ALJ’s reasoning does not have to be organized or labeled 12 in any particular way. Instead, the Court “properly considers the ALJ’s decision as 13 a whole.” James H. v. Berryhill, No. C18-5371, 2019 WL 330166, at *6, 2019 U.S. 14 Dist. LEXIS 12582, at *16 (W.D. Wash. Jan. 25, 2019); see Lozano v. Comm’r of 15 Soc. Sec., No. 2:18-CV-2164, 2019 WL 6310039, at *4 n.3, 2019 U.S. Dist. LEXIS 16 204576, at *12 n.3 (E.D. Cal. Nov. 25, 2019) (“It would be overly formalistic to 17 equate ‘specific and legitimate’ with a requirement that the ALJ repeat every 18 assertion made prior in the concluding paragraph.”). “As a reviewing court, we are 19 not deprived of our faculties for drawing specific and legitimate inferences from the 20 ALJ’s opinion.” Magallanes v, Bowen, 881 F.2d 74, 755 (9th Cir. 1989). Indeed, 21 “[e]ven when an agency explains its decision with less than ideal clarity, we must 22 uphold it if the agency’s path may reasonably be discerned.” Molina v. Astrue, 674 23 F.3d 1104, 1121 (9th Cir. 2012) (citations omitted), superseded by regulation on 24 other grounds. Here, as discussed below, the ALJ provided sufficiently “specific, 25 clear, and convincing reasons” for discounting Plaintiff’s subjective symptom 26 statements that “permit meaningful review.” Lambert v. Saul, No. 19-17102, — 27 F.3d—, 2020 WL 6735633, at *9–10 (9th Cir. Nov. 17, 2020). 28 1 D. The Sufficiency of the ALJ’s Reasons. 2 1. Reason One: Lack of Objective Support. 3 While inconsistencies with the objective medical evidence cannot be the sole 4 ground for rejecting a claimant’s subjective testimony, inconsistencies are factors 5 that the ALJ may consider when evaluating subjective symptom testimony. Burch 6 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); see SSR 16-3p, at *5 (“objective 7 medical evidence is a useful indicator to help make reasonable conclusions about 8 the intensity and persistence of symptoms, including the effects those symptoms 9 may have on the ability to perform work-related activities”); Carmickle v. Comm’r, 10 Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the 11 medical record is a sufficient basis for rejecting the claimant’s subjective 12 testimony.”). Plaintiff does not contest the ALJ’s discussion of the medical 13 evidence. Instead, she contends that the ALJ “failed to provide a logical bridge 14 between the testimony he finds unsupported and the evidence he believes 15 undermines the complaint.” (JS at 9–10.) To the contrary, the ALJ “specifically 16 identif[ied] the testimony … he [found] not to be credible and explain[ed] what 17 evidence undermines the testimony.” Treichler v. Comm’r of Soc. Sec. Admin., 18 775 F.3d 1090, 1102 (9th Cir. 2014) (citation omitted). 19 Plaintiff asserted that she needs reminders to take a shower, to take her 20 medications, and to go places, and does not follow written or spoken instructions 21 well. AR 552–60. The ALJ found that these statements were contradicted by Dr. 22 Pinanong’s psychiatric evaluation, which found that Plaintiff had an intact recent 23 and remote memory, a good vocabulary, and intact abstractions. AR 21 (citing AR 24 1139–43). Dr. Pinanong also found that Plaintiff had average intellectual 25 functioning, with an average vocabulary, fund of knowledge, abstraction, and 26 generalization. AR 21, 1139–43. Plaintiff also alleged an inability to handle a 27 savings account, use a checkbook or money orders, or finish what she starts. AR 28 552–60. The ALJ found these allegations to be contradicted by Dr. Pinanong’s 1 examination, which found Plaintiff able to do digit span forwards, focus attention 2 during the interview, and respond to questions with no difficulty or hesitation. AR 3 21, 1139–43. Plaintiff had a fair calculation ability, intact attention and 4 concentration, and coherent and goal-directed thought processes, with no evidence 5 of disorganized thinking or confusion. AR 21–22, 1139–43. Plaintiff further 6 asserted that she needed help dressing, bathing, caring for her personal grooming 7 needs, preparing meals, and doing household chores. AR 552–60. She alleged an 8 inability to go out alone, drive, or handle stresses or changes in routine. AR 552– 9 60. The ALJ found these assertions were contradicted by Plaintiff arriving at her 10 interview with Dr. Pinanong alone and on time and exhibiting intact insight and 11 judgment. AR 22, 1139–43. In response to Plaintiff’s testimony that she was 12 unable to stand for more than 20 minutes, sit for more than an hour, or walk for 13 more than one block at a time, and that her impairments limited her ability to sleep, 14 lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, and use her hands, the 15 ALJ noted the multiple, largely unremarkable physical examinations, including 16 normal range of motion; negative straight-leg raises; no tenderness, joint swelling, 17 or deformities at the hips or upper or lower extremities; no crepitus of the knees; 18 good tone and active motion of the muscles; normal motor strength; grossly intact 19 sensation and reflexes; and intact cranial nerves . Compare AR 23, with id. 24, 25 20 (citing AR 640–42, 650, 892–98, 917–18, 1047, 1095–102, 1129–32, 1218, 1290– 21 97). 22 2. Reason Two: Limited and Conservative Treatment. 23 The ALJ also considered that Plaintiff received limited and conservative 24 treatment. AR 24–25. She generally had only annual follow-ups with her primary 25 care provider for her fibromyalgia and obesity. AR 24–25. While Plaintiff was 26 referred to a rheumatologist for her fibromyalgia, she did not pursue seeing a 27 specialist. AR 25, 892–98. Her physical impairments were generally treated with 28 diet, exercise, and physical therapy. AR 25; see id. 640–42, 1217–20, 1232–34, 1 1252, 1263–64, 1283–85. A conservative treatment regimen “support[s] the ALJ’s 2 credibility determination.” Miner v. Berryhill, 722 F. App’x 632, 634 (9th Cir. 3 2018); see Tommasetti, 533 F.3d at 1039–40 (explaining that evidence of a 4 claimant’s favorable response to minimal and conservative treatment undermines 5 subjective symptom statements). 6 3. Reason Three: Positive Response to Treatment. 7 The ALJ further considered Plaintiff’s positive response to treatment. AR 8 25. Her fibromyalgia was largely controlled on medication with no side effects. 9 AR 25; see id. 1095–102, 1290–97. Plaintiff’s obesity improved with diet and 10 exercise. AR 25, 640–42. Her depression and anxiety were stable and controlled 11 on medication with no side effects. AR 26; see id. 640–42, 892–98, 1095–102, 12 1290–97, 1434–36, 1440–42, 1446–48. An ALJ may consider a positive response 13 to treatment when evaluating subjective testimony. See Warre v. Comm’r of Soc. 14 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be 15 controlled effectively with medication are not disabling for the purpose of 16 determining eligibility for SSI benefits.”); Crane v. Shalala, 76 F.3d 251, 254 (9th 17 Cir. 1996) (ALJ may consider “evidence suggesting that [the claimant] responded 18 well to treatment” in evaluating the claimant’s subjective symptoms). 19 4. Summary. 20 Furthermore, the ALJ did not completely reject Plaintiff’s testimony. AR 21 24–27. Due to Plaintiff’s subjective complaints and testimony, the ALJ rejected 22 Dr. Perer’s evaluation that she could perform light work. AR 24. Instead, because 23 of Plaintiff’s consistent use of a cane and walker, the ALJ limited her to sedentary 24 work with a need for a cane to stand and walk. AR 24. Based partly on Plaintiff’s 25 subjective statements, the ALJ also limited her to performing unskilled work with 26 only occasional interaction with supervisors, coworkers, and the public. AR 21–22, 27 27. 28 1 In sum, the ALJ offered clear and convincing reasons, supported by 2 || substantial evidence, for only partially crediting Plaintiff's subjective symptom 3 || testimony. 4 IV. 5 CONCLUSION 6 For the reasons stated above, IT IS ORDERED that judgment shall be 7 || entered AFFIRMING the decision of the Commissioner.

9 | DATED: November 23, 2020 ind □□ S 10 KAREN E. SCOTT United States Magistrate Judge

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