1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KENTAYA LARESA JENKINS, Case No. 19-cv-02094-VKD

9 Plaintiff,

ORDER RE CROSS-MOTIONS FOR

10 v. SUMMARY JUDGMENT

11 ANDREW M. SAUL, Re: Dkt. Nos. 22, 24 Defendant. 12

13 14 Plaintiff Kentaya Jenkins appeals a final decision of the Commissioner of Social Security 15 (“Commissioner”)1 denying her application for disability insurance benefits and supplemental 16 security income (“SSI”) under Titles II and Title XVI of the Social Security Act (“Act”), 42 17 U.S.C. §§ 423, 1381, et seq. Ms. Jenkins claims that the administrative law judge (“ALJ”) erred 18 in two respects. First, she contends that the ALJ failed to provide sufficient reasons for partially 19 discounting her allegations and testimony regarding the severity and limiting effects of her 20 impairments. Second, Ms. Jenkins claims that the ALJ did not provide sufficient reasons for 21 giving little weight to the testimony of her mother, Theresa Jenkins, regarding Ms. Jenkins’s 22 functional capacity. 23 The parties have filed cross-motions for summary judgment.2 The matter was submitted 24 without oral argument. Upon consideration of the moving and responding papers and the relevant 25 evidence of record, for the reasons set forth below, the Court denies Ms. Jenkins’s motion for 26 1 Pursuant to Fed. R. Civ. P. 25(d), Andrew M. Saul is substituted for his predecessor, Nancy A. 27 Berryhill. 1 summary judgment and grants the Commissioner’s cross-motion for summary judgment.3 2 I. BACKGROUND 3 Ms. Jenkins was born in 1980 and previously worked as a warehouse worker. On June 29, 4 2015, she had an acute myocardial infarction and underwent an angioplasty in which a stent was 5 placed in her heart. AR4 553-554. 6 On July 6, 2015, Ms. Jenkins applied for disability insurance benefits and SSI, alleging 7 that she has been disabled since December 31, 2014 due to “[m]ental difficulties, heart surgery, 8 high blood [sic], cholesterol, acid reflux [and] depression.” AR 263, 270, 342. Her application 9 was denied initially and on review. An ALJ held a hearing and subsequently issued an 10 unfavorable decision on March 29, 2018. AR 21-29. 11 The ALJ found that Ms. Jenkins did not perform substantial gainful activity after the 12 alleged onset date,5 and that she has the following severe impairments: status post acute 13 myocardial infarction with placement of a stent, depressive disorder, and alcohol abuse disorder. 14 AR 24. However, the ALJ concluded that Ms. Jenkins does not have an impairment or 15 combination of impairments that meets or medically equals the severity of one of the impairments 16 listed in the Commissioner’s regulations. Id. The ALJ determined that Ms. Jenkins has the 17 physical residual functional capacity (“RFC”) to perform a full range of medium work, as defined 18 in 20 C.F.R. § 404.1567(c) and § 416.967(c), involving no required interaction with the public. 19 AR 27. The ALJ found that Ms. Jenkins is able to perform past relevant work as a warehouse 20 worker and that such work does not require the performance of activities precluded by Ms. 21

22 3 All parties have expressly consented that all proceedings in this matter may be heard and finally adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 17, 18. 23

4 “AR” refers to the certified administrative record lodged with the Court. Dkt. No. 21. 24

5 Noting that Ms. Jenkins was self-employed providing childcare after the date of her alleged 25 disability onset date, the ALJ stated that he was unable to fully assess whether Ms. Jenkins’s earnings constitute substantial gainful activity requiring a denial of benefits at step one of the 26 sequential analysis. Nevertheless, he ultimately concluded that it made no difference to the outcome and found that Ms. Jenkins did not perform substantial gainful activity after the alleged 27 onset date, “but that her continued self-employment, and the detailed recordkeeping required to 1 Jenkins’s RFC. AR 28. Accordingly, the ALJ concluded that Ms. Jenkins has not been disabled, 2 as defined by the Act, from December 31, 2014 through the date of his decision. AR 29. 3 The Appeals Council denied Ms. Jenkins’s request for review of the ALJ’s decision. 4 AR 1-4. Ms. Jenkins then filed the present action seeking judicial review of the decision denying 5 her application for benefits. 6 II. STANDARD OF REVIEW 7 Pursuant to 42 U.S.C. § 405(g), this Court has the authority to review the Commissioner’s 8 decision to deny benefits. The Commissioner’s decision will be disturbed only if it is not 9 supported by substantial evidence or if it is based upon the application of improper legal 10 standards. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Moncada v. 11 Chater, 60 F.3d 521, 523 (9th Cir. 1995). In this context, the term “substantial evidence” means 12 “more than a mere scintilla but less than a preponderance—it is such relevant evidence that a 13 reasonable mind might accept as adequate to support the conclusion.” Moncada, 60 F.3d at 523; 14 see also Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether 15 substantial evidence exists to support the Commissioner’s decision, the Court examines the 16 administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 17 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where evidence exists to 18 support more than one rational interpretation, the Court must defer to the decision of the 19 Commissioner. Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258. 20 A. Ms. Jenkins’s Allegations and Testimony 21 Ms. Jenkins testified that she is unable to work due to her “heart condition” and “mental 22 state,” noting that she is still taking medication and “dealing with depression and anxiety.” AR 23 65. Ms. Jenkins further stated that she has “dealt with a bunch of tragedy” and is “scared to sleep 24 at night.” AR 66. In a function report, Ms. Jenkins stated that her medications cause headaches 25 and make her sleepy. AR 368. She further noted that she takes care of her children and takes 26 them to school; that she can walk 3-4 blocks before she needs to rest; that she walks slowly; and 27 that it takes her 1-4 hours to do the cleaning, laundry, ironing and cooking because she “get[s] 1 dying.” AR 373. 2 As noted above, the ALJ found that Ms. Jenkins has the following severe medically 3 determinable impairments: status post acute myocardial infarction with placement of a stent, 4 depressive disorder, and alcohol abuse disorder. AR 24. While he noted that these conditions 5 could reasonably be expected to produce Ms. Jenkins’s alleged symptoms, the ALJ concluded that 6 Ms. Jenkins’s statements concerning the intensity, persistence, and limiting effects of those 7 symptoms are not entirely consistent with the evidence as a whole. AR 27. Ms. Jenkins contends 8 that the ALJ failed to provide specific clear and convincing reasons, supported by substantial 9 evidence, for partially discrediting her allegations and testimony. Here, she seems to argue both 10 that the ALJ improperly relied solely on objective evidence, and that the ALJ failed to articulate 11 any basis at all to justify his assessment. Dkt. No. 22 at 7, 9. 12 In evaluating a claimant’s testimony regarding subjective symptoms, an ALJ must engage 13 in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). “First, the 14 ALJ must determine whether the claimant has presented objective medical evidence of an 15 underlying impairment which could reasonably be expected to produce the pain or other 16 symptoms alleged.” Id. at 1036 (internal citations and quotation marks omitted). The claimant is 17 not required to show that his impairment “could reasonably be expected to cause the severity of 18 the symptom she has alleged; she need only show that it could reasonably have caused some 19 degree of the symptom.” Id. (internal quotation omitted). “[O]nce the claimant produces 20 objective medical evidence of an underlying impairment, an adjudicator may not reject a 21 claimant’s subjective complaints based solely on a lack of objective medical evidence to fully 22 corroborate the alleged severity . . . .” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) 23 (internal citation omitted). Unless there is affirmative evidence showing that the claimant is 24 malingering, “‘the ALJ can reject the claimant’s testimony about the severity of her symptoms 25 only by offering specific, clear and convincing reasons for doing so.’” Tommasetti v. Astrue, 533 26 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 27 1996)). “General findings are insufficient; rather, the ALJ must identify what testimony is not 1 834 (9th Cir. 1995). 2 Here, the ALJ made no finding of malingering and therefore was required to provide 3 specific, clear and convincing reasons for discounting Ms. Jenkins’s statements regarding her 4 symptoms. Tommasetti, 533 F.3d at 1039. “Factors that an ALJ may consider in weighing a 5 claimant’s credibility include reputation for truthfulness, inconsistencies in testimony or between 6 testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek 7 treatment or follow a prescribed course of treatment.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 8 2007). “Although lack of medical evidence cannot form the sole basis for discounting pain 9 testimony, it is a factor that the ALJ can consider in his credibility analysis.” Burch v. Barnhart, 10 400 F.3d 676, 681 (9th Cir. 2005). 11 Here, the ALJ discussed the evidence and explained the inconsistencies in the record that 12 he concluded at least partially discredits Ms. Jenkins’s allegations and testimony regarding the 13 severity and limiting effects of her symptoms. Moreover, the ALJ did provide reasoning based on 14 more than just the objective evidence of record. 15 With respect to her physical symptoms, the ALJ found that Ms. Jenkins’s assertions are 16 inconsistent with the objective evidence, explaining that “although the evidence demonstrates a 17 myocardial infarction in June 2015, with some initial residual limitations, the record as a whole 18 shows that the claimant recovered significantly within months of this episode.” AR 27. Ms. 19 Jenkins does not dispute that finding. Indeed, with respect to her heart condition, the ALJ noted 20 that in a physical examination conducted approximately two months after her heart attack, 21 consultative examining physician Robert Tang, M.D. found no significant abnormalities and stated 22 that Ms. Jenkins’s cardiovascular system showed “[r]egular rate and rhythm. Normal S1 and S2. 23 No extra sounds or murmur are heard. There is no edema.” AR 27, 568. Additionally, the ALJ 24 correctly observed that in a cardiology consultative examination conducted by Dr. Rollington 25 Ferguson, M.D., F.A.C.C, F.A.C.P., a few months later in December 2015, Dr. Ferguson noted 26 that after an exercise treadmill test, Ms. Jenkins experienced dizziness upon exertion, but Dr. 27 Ferguson found no significant abnormalities and stated that Ms. Jenkins otherwise “demonstrated 1 The ALJ also cited a March 17, 2016 echocardiogram report showing a normal size left ventricle, 2 with only mild increase in the thickness of the ventricle wall, as well as a December 1, 2017 chest 3 x-ray showing normal heart size and mediastinum, “[n]o pneumothorax, infiltrates or effusions,” 4 “[n]o acute bony abnormality,” and “[n]o acute cardiopulmonary findings.” AR 28, 656, 728. 5 With respect to Ms. Jenkins’s mental condition, the ALJ acknowledged Ms. Jenkins’s 6 assertion that she was diagnosed with schizophrenia at age 15, and observed that the earliest 7 mental health treatment records available are from September 2015 indicating major depression 8 with psychotic features. AR 25, 605-608. An ALJ may consider whether a claimant’s symptoms 9 “change over a period of time (e.g., whether worsening, improving, or static),” as well as the 10 “longitudinal record of any treatment and its success or failure, including any side effects of 11 medication.” SSR 16-3p, 2017 WL 5180304, at *7; see also Burch, 400 F.3d at 681 (“The ALJ is 12 permitted to consider lack of treatment in his credibility determination.”). In reviewing the 13 available records, the ALJ correctly noted that within a few months of treatment with medication, 14 a January 25, 2016 report indicates that Ms. Jenkins “denie[d] any depressed mood” and that 15 “[h]er symptoms are well controlled now.” AR 25, 628-29. While the ALJ acknowledged that 16 Ms. Jenkins’s treatment records from early 2017 indicate that she was experiencing several 17 stressors (including her sister’s death and caring for her children, her sister’s children and her 18 mother), the ALJ remarked that her records nonetheless indicate “a largely normal mental status 19 examination,” with good insight, judgment, concentration and attention. AR 25, 699, 732. 20 Additionally, a December 2017 record indicates that Ms. Jenkins reported trouble sleeping and 21 feeling depressed and tired, but denied difficulties in her ability to concentrate. AR 25, 683, 685. 22 In concluding that Ms. Jenkins’s symptoms were not as severe as alleged, the ALJ also 23 considered the medical opinions of Drs. Tang and Ferguson, as well that of a third consultative 24 examiner, Dr. Shephali Gupta, Psy.D, who conducted a mental status examination in September 25 2015. AR 25-28; see 20 C.F.R. § 404.1529(c)(4), § 416.929(c)(4) (“We will consider whether 26 there are any inconsistencies in the evidence and the extent to which there are any conflicts 27 between your statements and the rest of the evidence, including your history, the signs and 1 symptoms affect you.”); see also SSR 16-3p, 2017 WL 5180304, at *6 (“Medical sources may 2 offer diagnoses, prognoses, and opinions as well as statements and medical reports about an 3 individual’s history, treatment, responses to treatment, prior work record, efforts to work, daily 4 activities, and other information concerning the intensity, persistence, and limiting effects of an 5 individual’s symptoms.”). Each of the examiners’ opinions regarding Ms. Jenkins’s functional 6 capabilities corroborates the ALJ’s finding that Ms. Jenkins’s functional capabilities are not as 7 limited as she alleged.6 Dr. Tang concluded that Ms. Jenkins can lift and carry up to 20 pounds 8 occasionally and 10 pounds frequently, with certain postural and environmental limitations. AR 9 569. Dr. Ferguson found that Ms. Jenkins would be able to lift and carry up to 50 pounds 10 occasionally and 20 pounds frequently; sit for up to eight hours, stand for up to six hours and walk 11 for up to four hours in an eight-hour workday, with the ability sit for eight hours and to sit and to 12 walk for up to two hours at one time without interruption. AR 626. Dr. Gupta concluded that Ms. 13 Jenkins has a mood disorder (not otherwise specified) and a Global Assessment of Functioning 14 score of 78, and found no limitation in Ms. Jenkins’s work-related abilities, except for a mild 15 limitation in her ability to interact appropriately with others, noting that Ms. Jenkins “was tearful 16 (no tear production) twice during the session.” AR 603. 17 Viewing the record as a whole, the Court finds that the ALJ provided specific clear and 18 convincing reasons for partially discrediting Ms. Jenkins’s statements and testimony and that his 19 reasons are supported by substantial evidence. The Court finds no error here. 20 B. Lay Witness Statements 21 At the administrative hearing, Ms. Jenkins’s mother, Theresa Jenkins, testified that she 22 lives with Ms. Jenkins; that Ms. Jenkins helps with chores such as washing the dishes and cleaning 23 the bathroom; that Ms. Jenkins was depressed following her heart attack; and that Ms. Jenkins 24 drinks a six-pack of beer a day and spends her days locked in her room. Theresa Jenkins further 25 testified that she felt Ms. Jenkins’s condition had gotten worse and that she would not be able to 26 obtain and maintain employment. AR 72-77. The ALJ gave “little weight” to Theresa Jenkins’s 27 1 testimony, stating that her “observations are not consistent with the totality of the record and the 2 level of treatment that the claimant has accessed since the alleged onset date.” AR 28. Ms. 3 Jenkins argues that the ALJ failed to provide germane reasons for rejecting her mother’s 4 testimony. 5 “Lay testimony as to a claimant’s symptoms or how an impairment affects the claimant’s 6 ability to work is competent evidence that the ALJ must take into account.” Molina v. Astrue, 674 7 F.3d 1104, 1114 (9th Cir. 2012), superseded by regulation on other grounds as stated in Sisk v. 8 Saul, — F. Appx. —, 2020 WL 5412845, at *2 (9th Cir. Sept. 9, 2020). “When an ALJ discounts 9 the testimony of lay witnesses, ‘he [or she] must give reasons that are germane to each witness.’” 10 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (quoting Dodrill v. 11 Shalala, 12 F.3d 915, 919 (9th Cir.1993)). 12 Citing regulations concerning the evaluation of a claimant’s symptom testimony, Ms. 13 Jenkins argues that the ALJ cannot rely solely on objective medical evidence in rejecting her 14 mother’s testimony. Additionally, Ms. Jenkins says that the ALJ failed to cite evidence indicating 15 that her “treatment was at a sub-standard level.” Dkt. No. 22 at 12. However, “[i]nconsistency 16 with medical evidence” is a germane reason for discrediting the testimony of lay witnesses. 17 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). As discussed above, the ALJ provided 18 sufficient reasons for rejecting Ms. Jenkins’s allegations and testimony based on evidence 19 demonstrating that her symptoms improved over time, her failure to seek continuous mental health 20 treatment despite allegations of disabling mental conditions since age 15, and the opinions of the 21 consultative examiners regarding Ms. Jenkins’s physical and mental functional capabilities. 22 Theresa Jenkins did not testify to any limitations beyond those described by Ms. Jenkins herself. 23 “In such a situation, the ALJ also gives germane reasons for rejecting other lay witness testimony 24 where it is found to be similar to claimant’s.” Bennet v. Colvin, 202 F. Supp. 3d 1119, 1130-31 25 (N.D. Cal. 2016); see also Valentine, 574 F.3d at 694 (“In light of our conclusion that the ALJ 26 provided clear and convincing reasons for rejecting Valentine’s own subjective complaints, and 27 because Ms. Valentine’s testimony was similar to such complaints, it follows that the ALJ also 1 decision to give little weight to Theresa Jenkins’s testimony. 2 || I. CONCLUSION 3 Based on the foregoing, the Court denies Ms. Jenkins’s motion for summary judgment and 4 || grants the Commissioner’s motion for summary judgment. The Clerk shall enter judgment 5 accordingly and close this file. 6 IT IS SO ORDERED. 7 Dated: September 28, 2020 8 9 Uniggiia Z Win, du Mar □□□

VIRGINIA K. DEMARCHI

10 United States Magistrate Judge 11 a 12

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