1 NOT FOR PUBLICATION 2

3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 KARENLEE H., Case No.: 20-cv-1646-AGS 6 Plaintiff, ORDER ON PLAINTIFF’S

SUMMARY-JUDGMENT MOTION

7 v. (ECF 13) 8 Andrew SAUL, 9 Defendant. 10 11 This Social Security claimant appeals the denial of her disability benefits. 12 BACKGROUND 13 In November 2017, Karenlee H. filed for Social Security disability insurance 14 benefits claiming she had become unable to work in 2015. (AR 172-73.) She alleged she 15 was disabled on account of her left foot fracture and 2015 surgery, shoulder (particularly 16 left shoulder) problems, back pain, osteoarthritis in her knees, hypertension, osteoporosis, 17 obesity, and depression. (See AR 12-13.) 18 The Administration first sent her application to two doctors. They both determined, 19 after review of her medical records, that she was capable of “medium” exertion work (see 20 AR 78, 93), which means she can lift 50 pounds, frequently carry 25 pounds, and walk or 21 stand six hours of an eight-hour day. See SSR 83-10, 1983 WL 31251, at *6. Because there 22 were jobs that she could do with that capability, her disability request was denied. 23 Karenlee then requested a hearing before an Administrative Law Judge to reconsider 24 those denials. (AR 117-18.) While waiting for the ALJ hearing, a CT scan confirmed that 25 her left foot was broken again. (AR 17, 724.) Two months later, she had a second surgery 26 on her left foot. (AR 726-27.) Healing from that surgery took several months, during which 27 she was gradually allowed to place some weight on the foot. (AR 730-35.) Five months 28 1 post-surgery, she was cleared to “weight bear as tolerated” on her left foot and use a cane. 2 (AR 688.) 3 Less than a month later, the Social Security Administration sent Karenlee to 4 Dr. David T. Easley for an examination. (AR 669-75.) He examined, among other things, 5 her feet, shoulders, back, knees, and gait. (See AR 672-74.) Unlike the last two doctors, 6 Dr. Easley concluded that she was capable of only “sedentary” tasks: sitting for six hours 7 during an eight-hour workday, walking or standing the other two, lifting and carrying 8 10 pounds occasionally, and less than 10 pounds frequently. (AR 675.) 9 This distinction became critical, because if Karenlee were limited to sedentary work, 10 given her age, the ALJ concluded she would be disabled. (AR 64.) A vocational expert 11 testified that even if she were limited to four hours of standing and four hours of sitting, 12 given her age and other restrictions, Karenlee would still be considered disabled. (AR 62.) 13 But the expert also testified that if Karenlee was restricted, along with her other limitations, 14 to light exertion—“standing or walking, off and on, for a total of approximately 6 hours of 15 an 8-hour workday” and lifting “no more than 20 pounds” with “frequent lifting of objects 16 weighing up to 10 pounds”—she could work and therefore would not be disabled. See SSR 17 83-10, 1983 WL 31251, at *6; (AR 60-61). 18 The ALJ determined that the medium exertional level found by the state-agency 19 doctors—who reviewed Karenlee’s records before her second foot surgery—was “less 20 restricting than the overall records supports.” (AR 21.) But the ALJ was also concerned 21 Dr. Easley’s one-time evaluation, recommending a sedentary exertional level, may “have 22 been influenced by then-limiting residual effects of the claimant’s recent left foot surgery 23 . . . .” (AR 20.) So the ALJ split the difference and concluded that Karenlee was limited to 24 light work. (AR 15.) Based on the vocational expert’s testimony, he found Karenlee not 25 disabled. (AR 23.) 26 27 28 1 DISCUSSION 2 Karenlee appeals, arguing that the ALJ: (1) provided insufficient reasons for 3 rejecting the sedentary exertion level recommended by Dr. Easley, (2) did not sufficiently 4 support his light-exertion conclusion, and (3) inappropriately discounted her testimony. 5 A. Dr. Easley’s Recommended “Sedentary Work” Restriction 6 Before considering the ALJ’s treatment of Dr. Easley’s opinion that Karenlee was 7 restricted to sedentary work, the Court must clarify the current state of the law regarding 8 medical-opinion evidence. 9 1. The Evolving Law on Medical-Opinion Evidence 10 For decades, the Social Security Administration considered medical opinions under 11 what became known as the “treating-physician rule,” see 20 C.F.R. § 404.1527, and 12 interpretations of that regulation led to a large body of case law. See, e.g., Trevizo v. 13 Berryhill, 871 F.3d 664, 675-77 (9th Cir. 2017); Arakas v. Comm’r of Soc. Sec., 983 F.3d 14 83 (4th Cir. 2020); Jones v. Astrue, 647 F.3d 350 (D.C. Cir. 2011); Calvert v. Firstar 15 Finance, Inc., 409 F.3d 286 (6th Cir. 2005); Gilbertson v. Allied Signal, Inc., 328 F.3d 625 16 (10th Cir. 2003); Hackett v. Barnhart, 395 F.3d 1168 (10th Cir. 2005); Leggett v. Chater, 17 67 F.3d 558 (5th Cir. 1995). But for claims filed after March 2017, like this one, that 18 regulation was replaced with 20 C.F.R. § 404.1520c. The new regulation streamlined the 19 consideration of medical opinions, removing the old rule’s medical-provider hierarchy and 20 increasing ALJ discretion by cutting down the number of considered factors. 21 Karenlee argues that the change in regulations should have little-to-no effect on how 22 this Court reviews Social Security cases. (ECF 16, at 2.) And some courts agree. See, e.g., 23 Shawn H. v. Comm’r of Soc. Sec., No. 19-CV-113 (JMC), 2020 WL 3969879, at *6 (D. Vt. 24 July 14, 2020) (“Even though ALJs are no longer directed to afford controlling weight to 25 treating source opinions[,] . . . the regulations still recognize the ‘foundational nature’ of 26 the observations of treating sources, and ‘consistency with those observations is a factor in 27 determining the value of any [treating source’s] opinion.’” (quoting Barrett v. Berryhill, 28 906 F.3d 340, 343 (5th Cir. 2018)). The Commissioner, however, argues that the 1 regulations shift how medical opinions are considered by the ALJ, so the review of those 2 decisions should also change. (ECF 15, at 9-17.) 3 The Commissioner is correct. The Administration is required by regulation to seek 4 out and consider medical opinions, see 20 C.F.R. § 404.1512(b)(1), and how it then 5 considers those opinions is left by statute to the Administration’s rulemaking authority. See 6 42 U.S.C. § 405(a). The purpose in changing the regulation—removing the hierarchy of 7 different kinds of medical opinions and reducing the number of required factors—was to 8 reduce the automatic deference paid to some medical opinions and thereby increase the 9 discretion left to the ALJ in how to consider each medical opinion. See Social Security 10 Administration, Revisions to Rules Regarding the Evaluation of Medical Evidence, 11 https://www.ssa.gov/disability/professionals/bluebook/revisions-rules.html (last visited 12 March 29, 2022) (“For claims filed on or after March 27, 2017, our rules about how we 13 consider medical opinions will change. First, we will no longer give any specific 14 evidentiary weight to medical opinions; this includes giving controlling weight to any 15 medical opinion. Instead, we will consider the persuasiveness of medical opinions using 16 the factors specified in our rules.”). The Court is required to give effect to those regulations, 17 including the greater discretion they invest in the ALJ to weigh the persuasiveness of 18 medical opinions. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 19 843-44 (1984) (“If Congress has explicitly left a gap for the agency to fill, there is an 20 express delegation of authority to the agency to elucidate a specific provision of the statute 21 by regulation. Such legislative regulations are given controlling weight unless they are 22 arbitrary, capricious, or manifestly contrary to the statute.”). 23 So, the Court is limited to the familiar and forgiving review that the ALJ may not 24 abuse that discretion. See Smith v. Berryhill, 139 S. Ct. 1765, 1779 (2019) (“[T]he standard 25 of review [is an] abuse of discretion as to the overall conclusion, and ‘substantial evidence’ 26 ‘as to any fact.’” (quoting 42 U.S.C. § 405(g)). ALJs abuse their discretion when they fail 27 to (1) “consider” the medical-opinion evidence as required by regulation; (2) “articulate” 28 specific and legitimate reasons—particularly the consistency and supportability of the 1 opinion—for the persuasiveness of the opinion; or (3) support those reasons with 2 “substantial evidence” from the record. See 20 C.F.R. § 404.1520c(a) (“[W]e will consider 3 those medical opinions or prior administrative medical findings from that medical source 4 together using the factors listed . . . .”); 20 C.F.R. § 404.1520c(b) (“We will articulate in 5 our determination or decision how persuasive we find all of the medical opinions and all 6 of the prior administrative medical findings in your case record.”); 20 C.F.R. 7 § 404.1520c(b)(2) (“The factors of supportability . . . and consistency . . . are the most 8 important factors. . . . We may, but are not required to, explain how we considered the 9 [other] factors . . . .”); 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social 10 Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). 11 2. Dr. Easley’s Opinion 12 The ALJ found Dr. Easley’s opinion that Karenlee is limited to sedentary work 13 unpersuasive, concluding that Dr. Easley’s evaluation “appear[s] to have been influenced 14 by then-limiting residual effects of the claimant’s recent left foot surgery.” (AR 20.) The 15 ALJ pointed out that just a few weeks beforehand, Karenlee’s treating doctor noted she’d 16 just received authorization to begin weight bearing on that foot in a normal shoe, that she 17 was “ambulatory at a community level,” and that she was now walking with a cane. (AR 21 18 (citing AR 688); see also AR 735 (podiatrist ordering her to “walk for 5 minutes and add 19 100 yards per day as tolerated” a month before Dr. Easley’s evaluation).) And the ALJ 20 correctly identified that the record anticipated a “continued course of recovery from this 21 surgery.”1 (AR 20; see, e.g., AR 735 (podiatrist providing exercise plan “so the second 22 metatarsal can become [stronger]”).) 23 24 25 26 1 Unfortunately, those medical records are among the last in the administrative 27 record, so the ALJ was unable to see if that anticipated course of recovery ever came to pass. (See ECF 12-1, at 1-3 (AR index listing the various medical records and date ranges, 28 1 An ALJ may discount a medical opinion on the grounds that the doctor may have 2 been influenced by an acute problem that is expected to recover. See 20 C.F.R. 3 § 404.1520c(c)(2) (requiring an ALJ to consider how “consistent a medical opinion(s) . . . 4 is with the evidence from other medical sources and nonmedical sources in the claim”); 5 20 C.F.R. § 404.1513(a)(3) (including “prognosis” as a piece of medical evidence for ALJ 6 consideration). This is particularly true here. Although Karenlee told Dr. Easley about her 7 surgeries, Dr. Easley did not review any medical records nor was he privy to where she 8 was in the recovery process. (See AR 669 (“There are no medical records available for 9 review at this time.”); id. (“The source of information for this evaluation is the claimant 10 who was an adequate historian.”).) Finally, the ALJ supported those conclusions by 11 substantial evidence, pointing to the record where Karenlee made gradual but continual 12 improvement with her foot post-surgery. (See AR 20.) So, the ALJ did not abuse his 13 discretion in finding Dr. Easley’s medical opinion less persuasive. 14 Karenlee argues that even if the ALJ correctly considered Dr. Easley’s report about 15 her foot, the ALJ erred in considering that report regarding her knees, obesity, and back 16 pain, which could support a sedentary restriction on their own. (See ECF 13, at 6.) But this 17 reading is not supported by the record. Dr. Easley attributed her difficulty in standing and 18 walking to her left foot issues. First, in his “Station and Gait” analysis, he wrote: “Upon 19 arising, she uses a cane in the right hand for balance with ambulation. She has difficulty 20 bearing weight on her left foot due to the lack of mobility and flexibility of the first and 21 second metatarsal joints, which have recently been fused.” (AR 673.) Then again in his 22 “Feet” examination, Dr. Easley stated: “In the standing position, she is unable to flex the 23 toes and has difficulty standing.” (AR 674.) 24 By contrast, although Dr. Easley noted tenderness in Karenlee’s knees, he also 25 measured normal range of motion and strength. (AR 674.) He found pain and a reduced 26 range of motion in Karenlee’s back but did not link those problems to her limited walking- 27 and-standing ability. (AR 672.) So, the ALJ’s reading of Dr. Easley’s report attributing her 28 standing-and-walking limitation primarily to her left foot is a reasonable reading of the 1 record. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“[W]hen the evidence 2 is susceptible to more than one rational interpretation, we must uphold the ALJ’s findings 3 if they are supported by inferences reasonably drawn from the record.”). 4 B. Substantial Evidence for “Light Work” Limitation 5 Karenlee next objects that the ALJ’s conclusion that she can perform light work— 6 including the walking/standing limitation and the lifting/carrying limitation—is 7 unsupported by substantial evidence.2 “Substantial evidence means more than a mere 8 scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 9 might accept as adequate to support a conclusion.” Vasquez v. Astrue, 572 F.3d 586, 591 10 (9th Cir. 2008) (citation omitted). “This is a highly deferential standard of review.” 11 Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). 12 The ALJ concluded that Karenlee could perform light work, which includes 13 “standing or walking, off and on, for a total of approximately 6 hours of an 8-hour 14 workday” and lifting “no more than 20 pounds” with “frequent lifting of objects weighing 15 up to 10 pounds.” See SSR 83-10, 1983 WL 31251, at *6. Karenlee maintains that the ALJ 16 lacked any evidence to support his belief that she could lift that much or walk or stand for 17 six hours in an eight-hour workday. (ECF 13, at 6.) She asserts instead that the ALJ 18 impermissibly substituted his own medical assessment for Dr. Easley’s. (ECF 16, at 5.) 19 And she contends that the ALJ ignored her bad knees and back, which would have resulted 20 in a sedentary restriction notwithstanding her foot issues. (Id. at 4.) 21 These arguments lack support in the record. Two different doctors opined that 22 Karenlee could do medium work, which also requires standing or walking for six hours in 23 an eight-hour workday and requires “lifting no more than 50 pounds” with “frequent lifting 24 25 2 Embedded within her challenge to the ALJ’s rejection of Dr. Easley’s sedentary 26 limitation, Karenlee appears to argue that the ALJ’s restrictions are unsupported by 27 substantial evidence. While she does not expressly raise this argument, out of an abundance of caution, the Court has interpreted these arguments as a direct challenge to the ALJ’s 28 1 or carrying of objects weighing up to 25 pounds.” See SSR 83-10, 1983 WL 31251, at *6; 2 (AR 78, 93). Although the ALJ only considered their opinions “somewhat persuasive”— 3 probably because they rendered their opinions before the final foot surgery—he did so by 4 limiting her to light work. (AR 21.) Put another way, the ALJ had three doctors who opined 5 on her capabilities: two at the medium level and one at the sedentary level. He gave valid 6 reasons for finding different pieces of each doctors’ analysis persuasive, and therefore 7 supported his determination with substantial evidence. See Thomas v. Barnhart, 278 F.3d 8 947, 956-57 (9th Cir. 2002) (“When there is conflicting medical evidence, the Secretary 9 must determine credibility and resolve the conflict.” (citation omitted)); Andrews v. 10 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (“The ALJ is responsible for determining 11 credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” 12 (citation omitted)). 13 Similarly, Karenlee’s argument that the ALJ ignored her bad knees and back lacks 14 merit. The ALJ recounted the medical evidence concerning her knees, including Dr. 15 Easley’s finding of “tenderness to palpation over the medial line,” but concluded those 16 “findings reasonably support limitations to light exertion and reduced kneeling.” (AR 19- 17 20.) Similarly, he discussed her back problems, again including Dr. Easley’s diagnosis of 18 “chronic low back pain without radiculopathy,” at some length. (AR 18-20.) The ALJ 19 wrestled with the evidence that suggested greater limitation—like the 2017 MRI showing 20 “multilevel degenerative disc disease, facet arthropathy, and ligamentum flavum 21 hypertrophy throughout the lumbar spine”—and that which suggested fewer restrictions— 22 like the 2019 x-ray indicating only “moderate degenerative disc disease of the upper lumbar 23 spine.” (AR 18-20.) There is nothing in the record to support Karenlee’s supposition that 24 those issues alone would have mandated a conclusion that she was restricted to sedentary 25 jobs, or that the ALJ’s light-work restriction lacked substantial evidence. 26 Karenlee’s most persuasive argument is that the ALJ failed to provide a reasoned 27 explanation why he picked light work—with its six-hour walking and standing 28 requirement—instead of limiting her to only four hours of standing and walking, which the 1 vocational expert testified would render her disabled. (See AR 62.) But ultimately this is 2 not an error either. No regulation or statute requires ALJs to eliminate all other rational or 3 supportable readings of the record; they must merely provide a reasonable interpretation of 4 the record and support that interpretation with substantial evidence. See 42 U.S.C. § 405(g); 5 Molina, 674 F.3d at 1111. The ALJ did so here. 6 C. Subjective Testimony 7 Finally, Karenlee faults the ALJ for disbelieving her testimony about the severity of 8 her limitations. The ALJ found that Karenlee’s “allegation of disabling mental 9 impairments” was unsupported by the medical record or her daily activities. (AR 14.) He 10 concluded that her testimony that she can “walk [only] 50 yards,” “is unable to lift even 11 5 pounds,” and can “stand [only] five to 10 minutes before she experiences back pain” to 12 be unpersuasive based on the medical record and her daily activities. (AR 16.) And he 13 determined that her “allegedly disabling left shoulder and back pain” was undermined by 14 the conservative treatment she underwent for those conditions. (AR 19.) 15 “[T]he ALJ must give specific, clear and convincing reasons in order to reject the 16 claimant’s testimony about the severity of the symptoms.” Molina, 674 F.3d at 1112 17 (quotation marks omitted). “The clear and convincing standard is the most demanding 18 required in Social Security cases.” Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 19 924 (9th Cir. 2002). 20 1. Unsupported by the Medical Record 21 “While subjective pain testimony cannot be rejected on the sole ground that it is not 22 fully corroborated by objective medical evidence,” an ALJ may consider whether 23 claimant’s testimony is supported by “the medical evidence.” See Rollins v. Massanari, 24 261 F.3d 853, 857 (9th Cir. 2001). 25 a. Mental Impairments 26 The ALJ appropriately considered the tension between Karenlee’s allegations 27 concerning her restrictive depression and the benign medical record on that point. 28 (Compare AR 191 (listing “DEPRESSION” as a mental condition limiting her ability to 1 work), with, e.g., AR 303 (August 2016 doctor’s note assessing “[s]table” “[m]ajor 2 depression”), AR 310-11 (October 2016 note: “anxiety and depression, but not suicidal, no 3 personality change, and no emotional problems”), AR 314 (February 2017: “Major 4 depression” “stable”), AR 318 (April 2017: “Major depression: Stable”), AR 323 5 (March 2017: “Major depression” “unstable” but no symptoms associated), AR 388 6 (November 2017: “Not Present- Anxiety and Depression”), AR 579 (March 2018: “Not 7 Present- Anxiety and Depression”), AR 574 (June 2018: “Not Present- Anxiety and 8 Depression”), AR 588 (February 2019: “Major depression: Stable”).) In her brief, Karenlee 9 doesn’t contest this point and has thus waived any challenge to it. See Greger v. Barnhart, 10 464 F.3d 968, 973 (9th Cir. 2006) (holding that a Social Security “issue is waived” if not 11 raised in briefing before the district court). 12 b. Walking and Standing 13 Karenlee contends that the ALJ failed to identify medical evidence to contradict her 14 testimony that she could “walk [only] 50 yards” and “stand [only] five to 10 minutes” 15 without pain. (AR 16; see, e.g., ECF 16, at 6.) The ALJ noted that, after her first foot 16 surgery, Karenlee was reported to have healed well and was “100 percent weight-bearing” 17 eight months later. (AR 16, 392.) He also pointed out that Karenlee “ambulat[ed] without 18 an assistive device, other than some period after her [second] left foot surgery.” (AR 19.) 19 And even then, she was walking “with her cane” and was “ambulatory at a community 20 level” five months later. (AR 17.) The ALJ reasonably concluded—and the medical record 21 suggests—that Karenlee is not as limited as she testified. 22 There is certainly medical evidence of the walking-and-standing problems caused 23 by Karenlee’s foot, knees, back, and obesity. But even Dr. Easley, the doctor who restricted 24 her the most, only limited Karenlee to walking and standing two hours out of an eight-hour 25 workday. (See AR 677.) Thus, the ALJ rationally concluded from the record that none of 26 Karenlee’s problems rose to the extreme level that would limit her to standing only five to 27 ten minutes or walking no more than 50 yards without pain. This Court is bound by that 28 rational interpretation. See Molina, 674 F.3d at 1111. 1 c. Unable to Lift 5 to 10 Pounds 2 The ALJ offered substantial evidence that the medical record contradicted 3 Karenlee’s testimony that she cannot lift “even 10 pounds” and that “even five pounds is 4 pushing it.” (See AR 52; see also AR 16, 20.) The most sympathetic physician, Dr. Easley, 5 concluded that Karenlee could lift 10 pounds “occasionally” and less than 10 pounds 6 “frequently.” (AR 675); see SSR 83-10, 1983 WL 31251, at *6 (“‘Occasionally’ means 7 occurring from very little up to one-third of the time. . . . ‘Frequent[ly]’ means occurring 8 from one-third to two-thirds of the time.”). Karenlee doesn’t contest this finding, thereby 9 waiving any argument about it. See Greger, 464 F.3d at 973 (issues not raised are waived).3 10 In sum, the ALJ appropriately determined that the medical record contradicted 11 Karenlee’s claims, and thus it serves as a clear and convincing reason to reject her 12 testimony. See Rollins, 261 F.3d at 857. 13 2. Daily Activities 14 The ALJ found that Karenlee’s daily activities contradicted her allegations about 15 both her mental ailments and her physical limitations. (AR 14, 21.) “Inconsistencies 16 between a claimant’s testimony and the claimant’s reported activities provide a valid 17 18 19

20 21 3 An ALJ “may not reject a claimant’s subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 22 400 F.3d 676, 680 (9th Cir. 2005). But the Ninth Circuit has sometimes treated a lack of 23 objective medical evidence differently than a direct contradiction with the medical record, as here. For example, in Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155 (9th Cir. 24 2008), the ALJ rejected claimant’s testimony “that he can lift only 10 pounds occasionally 25 in favor of Dr. Patton’s contradictory opinion that he can lift up to 10 pounds frequently.” Id. at 1161 (emphasis added). The Court held that this sort of “[c]ontradiction with the 26 medical record is a sufficient basis for rejecting the claimant’s subjective testimony.” Id. 27 The identical type of direct contradiction here could—by itself—justify the ALJ’s decision to reject Karenlee’s testimony. But this Court need not rely solely on that rationale, as the 28 1 reason for an adverse credibility determination.” Burrell v. Colvin, 775 F.3d 1133, 1137 2 (9th Cir. 2014) (citation omitted). 3 a. Mental Disabilities 4 The ALJ reasonably contrasted Karenlee’s allegations of disabling mental 5 impairments with her ability to “take care of her needs and grooming,” “take medication,” 6 be “independent in her personal care,” “care [for] her elderly mother,” “perform[] 7 household chores,” “drive, go out alone, shop, and handle finances,” and “spend[] time 8 with others.” (AR 14.) And Karenlee doesn’t argue otherwise. See Greger, 464 F.3d at 973 9 (issues not raised are waived). Thus, the ALJ properly relied on Karenlee’s daily activities 10 as a clear and convincing basis for rejecting her testimony about her mental limitations. 11 b. Walking, Standing, and Lifting Five Pounds 12 On the other hand, the ALJ did not support his conclusion that her activities of daily 13 living undermine her testimony about her physical limitations. None of the noted daily 14 activities—including handling money, driving, cooking, cleaning, and taking care of her 15 elderly mother—suggest that she can lift more than five pounds, walk more than 50 yards, 16 or stand for longer than ten minutes. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) 17 (holding that daily activities must “contradict [claimant’s] other testimony” or meet a 18 “threshold for transferable work skills”). The ALJ also mentioned that she could “shop[] 19 in stores” (AR 21), but Karenlee testified that she does so on a motorized wheelchair or 20 leaning against the shopping cart and asks for help for any item over five pounds. (AR 52.) 21 Shopping in stores under such limitations does not contradict her testimony about standing, 22 walking, or lifting. See Orn, 495 F.3d at 639. So, Karenlee’s daily activities were not a 23 clear and convincing reason to reject her testimony about her physical restrictions. 24 3. Conservative Treatment 25 Finally, the ALJ determined that Karenlee’s allegations about disabling pain from 26 her left shoulder and back are belied by the conservative treatment she received for those 27 conditions. (AR 19.) An ALJ can reasonably infer from conservative treatment that the 28 pain is not as serious as a claimant insists. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 1 (9th Cir. 2008). Technically, Karenlee concedes this point by not addressing it. See 2 Greger, 464 F.3d at 973 (issues not raised are waived). But the ALJ’s reasoning here is 3 flawed. For both her shoulder and back, Karenlee was prescribed Norco. (See, e.g., 4 AR 702.) And “[t]he consistent use of Norco, a strong opioid medication, cannot accurately 5 be described as ‘conservative’ treatment.” Bucknell v. Berryhill, No. ED CV 18-0261 AS, 6 2018 WL 6198459, at *4 (C.D. Cal. Nov. 27, 2018) (collecting cases). Karenlee also 7 received cortisone injections for her left shoulder. (AR 630.) Even more problematically, 8 an orthopedic surgeon recommended surgery to repair her left shoulder. (AR 619.) 9 “[I]njections, prescriptions for narcotic pain medication . . . and also . . . [a] doctor[’s] 10 recommendation[] that she undergo surgery” do not constitute conservative treatment. 11 Vogel v. Colvin, No. ED CV 15-166-E, 2015 WL 12748243, at *2 (C.D. Cal. Sept. 11, 12 2015). So, this ground is not clear and convincing, and the Court will not consider it 13 notwithstanding the waiver. 14 D. Harmless Error 15 Next, the Court must decide whether the ALJ’s error in relying on two invalid 16 reasons for rejecting Karenlee’s subjective testimony is harmless, given the remainder of 17 the ALJ’s valid analysis. An ALJ’s error will be held harmless when “the ALJ provided 18 one or more invalid reasons” to reject testimony or an opinion, “but also provided valid 19 reasons that were supported by the record.” Molina, 674 F.3d at 1115. Put another way, an 20 error must be “consequential to the ultimate nondisability determination” to be prejudicial. 21 Id. (citation omitted). Claimant bears “the burden to show prejudice.” McLeod v. Astrue, 22 640 F.3d 881, 887-88 (9th Cir. 2011). 23 Karenlee has not met her burden of showing prejudice. In fact, she makes no 24 argument on this point at all. Even without the improper reasons, the ALJ offered a clear 25 and convincing rationale for rejecting Karenlee’s testimony: (1) her daily activities 26 contradicted her testimony on her mental disabilities and (2) the medical record failed to 27 support—or directly contradicted—her testimony on at least three topics. See Carmickle v. 28 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (holding two invalid 1 ||reasons for an adverse credibility finding were harmless error considering the remaining 2 || valid rationale); Green v. Saul, 830 F. App’x 922, 923 & n.2 (9th Cir. 2020) (holding four 3 ||invalid reasons for an adverse-credibility finding were harmless considering the two 4 || remaining valid reasons). The error here was therefore harmless. 5 CONCLUSION 6 Thus, plaintiff Karenlee’s summary-judgment motion is denied. The Clerk is 7 || directed to issue a judgment and close this case. 8 AFFIRMED. 9 || Dated: March 30, 2022 10 —— | —— 1 Hon. ndrew G. Schopler United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14