(SS) Serabian v. Commissioner of Social Security

Filing 17

FINAL JUDGMENT and ORDER regarding Plaintiff's Social Security Complaint 12 , 16 signed by Magistrate Judge Erica P. Grosjean on 3/11/2025. CASE CLOSED. (Deputy Clerk TEL)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SERGE SERABIAN,

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Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,

Case No. 1:24-cv-00712-EPG
FINAL JUDGMENT AND ORDER
REGARDING PLAINTIFF’S SOCIAL
SECURITY COMPLAINT
(ECF Nos. 12, 16).

Defendant.

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This matter is before the Court on Plaintiff Serge Serabian’s (“Plaintiff”) complaint for
judicial review of an unfavorable decision by the Commissioner of the Social Security
Administration regarding his application for disability insurance benefits. The parties have
consented to entry of final judgment by the United States Magistrate Judge under the provisions

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of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Ninth Circuit. (ECF No. 8).
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Plaintiff raises the following issues:
A. The physical residual functional capacity (“RFC”) determination is not supported by

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substantial evidence because the Administrative Law Judge (“ALJ”) erroneously

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found consultative examiner Dr. Roger Wagner, M.D.’s opinion persuasive.

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B. The ALJ erroneously determined that Plaintiff’s mental impairments were non-severe
impairments at step two.
C. The ALJ failed to include work-related limitations in the RFC consistent with the

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nature and intensity of Plaintiff’s limitations, and failed to offer legitimate reasons for

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rejecting Plaintiff’s subjective complaints.
Having reviewed the record, administrative transcript,1 parties’ briefs, and the applicable

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law, the Court finds as follows.

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I.

A. Dr. Wagner’s Opinion

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Plaintiff argues that the ALJ’s physical RFC determination is not supported by substantial

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ANALYSIS

evidence because the ALJ erroneously assessed the opinion of consultative examiner Dr. Roger
Wagner, M.D., as persuasive.2 (ECF No. 12 at 14–16). In response, the Commissioner argues that
the ALJ properly evaluated Dr. Wagner’s opinion. (ECF No. 16 at 5–7).

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Because Plaintiff applied for benefits in 2021, certain regulations concerning how ALJs
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must evaluate medical opinions for claims filed on or after March 27, 2017, govern this case. See
20 C.F.R. §§ 404.1520c, 416.920c. These regulations set “supportability” and “consistency” as

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“the most important factors” when determining an opinion’s persuasiveness. See 20 C.F.R. §§

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404.1520c(b)(2), 416.920c(b)(2). And although the regulations eliminate the “physician

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hierarchy,” deference to specific medical opinions, and assignment of specific “weight” to a

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medical opinion, the ALJ must still “articulate how [he or she] considered the medical opinions”

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and “how persuasive [he or she] find[s] all of the medical opinions.” See 20 C.F.R. §§

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404.1520c(a)-(b); 416.920c(a)-(b).

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As for the case authority preceding the new regulations that required an ALJ to provide

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clear and convincing or specific and legitimate reasons for rejecting certain medical opinions, the

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Ninth Circuit has concluded that it does not apply to claims governed by the new regulations:
The revised social security regulations are clearly irreconcilable with our caselaw
according special deference to the opinions of treating and examining physicians
on account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a)
(“We will not defer or give any specific evidentiary weight, including controlling
weight, to any medical opinion(s) . . ., including those from your medical

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ECF No. 9-1 comprises the sealed Administrative Record (“AR”). When citing to the record, the Court
cites to the AR’s internal pagination in the lower right-hand corner of each page, rather than to the
CM/ECF document number and page.
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The Court notes that a heading in Plaintiff’s brief for this argument refers to “Dr. Swanson” instead of
Dr. Wagner. (See ECF No. 12 at 13). This reference to Dr. Swanson appears to be a scrivener’s error as
Plaintiff’s argument and other headings in his brief make clear that Plaintiff is challenging the ALJ’s
evaluation of Dr. Wagner’s opinion.
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sources.”). Our requirement that ALJs provide “specific and legitimate reasons”
for rejecting a treating or examining doctor’s opinion, which stems from the
special weight given to such opinions, see Murray, 722 F.2d at 501–02, is likewise
incompatible with the revised regulations. Insisting that ALJs provide a more
robust explanation when discrediting evidence from certain sources necessarily
favors the evidence from those sources—contrary to the revised regulations.
Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).
Accordingly, under the new regulations, “[t]he agency must ‘articulate . . . . how
persuasive’ it finds ‘all of the medical opinions’ from each doctor or other source, 20 C.F.R. §
404.1520c(b), and ‘explain how [it] considered the supportability and consistency factors’ in
reaching these findings, id. § 404.1520c(b)(2).” Woods, 32 F.4th at 792.
Supportability means the extent to which a medical source supports the medical
opinion by explaining the “relevant . . . objective medical evidence.” Id. §
404.1520c(c)(1). Consistency means the extent to which a medical opinion is
“consistent . . . with the evidence from other medical sources and nonmedical
sources in the claim.” Id. § 404.1520c(c)(2).
Id. at 791–92. Ultimately, “an ALJ’s decision, including the decision to discredit any medical
opinion, must simply be supported by substantial evidence.” Id. at 787. Substantial evidence
means “more than a mere scintilla,” Richardson v. Perales, 402 U.S. 389, 402 (1971), but less
than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is

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“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

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Richardson, 402 U.S. at 401 (internal citation omitted).

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Dr. Wagner completed an internal medicine consultative examination of Plaintiff on

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November 2, 2021. (AR 605–10). During his examination, Dr. Wagner reviewed Plaintiff’s past

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medical records, his medications, and his activities of daily living. (Id.) After conducting a

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comprehensive physical examination, Dr. Wagner ultimately opined that Plaintiff could stand and

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walk for up to six hours with normal breaks, sit without limitation with normal breaks, and lift

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and carry 20 pounds occasionally and 10 pounds frequently “given [his] slight right-sided

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weakness.” (AR 610). Dr. Wagner also opined that Plaintiff had no manipulative limitations, that

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he could climb occasionally with no other postural limitations, and that he “should not work
around heights or heavy machinery given his reported occasional balance problems.” (Id.)
In his written decision, the ALJ first summarized Dr. Wagner’s consultative examination
and opinion, as follows:
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Roger Wagner, MD consultatively examined the claimant in November 2021
(Exhibit 8F, pp. 1-7). The claimant complained of stroke, hypertension, neck pain,
and low back pain. Dr. Wagner reviewed records indicating an ejection fraction of
57 percent, normal Holter monitor from February 2021, echocardiogram indicated
an ejection fraction of 55 to 60 percent, carotid ultrasound indicating
atherosclerosis, an operative report for right ureter stent placement in May 2019, a
January 2018 CT of the abdomen indicating bilateral renal stones, and MRI of the
lumbar and cervical spines. The claimant reported a stroke on December 9, 2020,
with some right sided weakness and numbness that was already resolving by the
time he got to the emergency room. He was not hospitalized at that time due to the
hospital being overloaded with Covid patients. He reported continued right sided
weakness, and he complained of slight memory problems and cognitive slowing
with difficulty keeping numbers in mind when doing business deals. He also
reported very minimal balance problems and he only very rarely used a cane. He
reported that he cooked, drove, shopped, walked for exercise, and was independent
with his activities of daily living. His medications included Olmesartan, Aspirin,
Allopurinol, gabapentin, spironolactone, escitalopram, ropinirole, vitamin D3,
potassium citrate, lactose intolerance medication, and Imodium. The claimant
smoked one-half a pack per week, down from one pack per week in the past. He
occasionally drank alcohol and never used drugs.
The claimant was easily able to get out of the chair and walk at a normal speed to
the exam room without assistance, sat comfortably, and was easily able to get on
and off the exam table, and bend at the waist to take off his shoes and socks,
demonstrating good dexterity and flexibility. He was pleasant and cooperative and
provided an adequate history. His dexterity was good, and he was able to oppose
fingertips to thumb tips though he had slight difficulty with the right fourth finger
opposing the thumb. He was five feet four inches and weighed 156 pounds, his
blood pressure was high at 162/96, and his visual acuity without lenses was 20/30
on the left and 20/25 on the right. His chest was symmetric with normal excursions
and his lungs were clear to auscultation. Cardiovascular sounds had a regular rate
and rhythm with normal S1 and S2 and no extra sounds or murmurs. Peripheral
pulses in the carotid, radial, dorsalis, pedis, and posterior tibial were 2+ and equal
bilaterally. Extremities were without cyanosis, clubbing, or edema. The claimant
was able to walk a couple steps on his toes and heels, he had normal station, gait,
and finger to nose, and negative Romberg. He did not use an assistive device for
ambulation. Range of motion of the neck, back and other joints was within normal
limits, straight leg raises were negative, and motor strength was 5/5 in the left
upper and lower extremities and 4+/5 in the right upper and lower extremity.
Sensation was intact to light touch and pinprick, and reflexes were 2+, and
minimally more brisk in the right than the left upper extremity. Cranial nerves
were grossly intact. Dr. Wagner opined that the claimant could stand and walk up
to six hours with normal breaks, sit without limitation with normal breaks, and lift
and carry 20 pounds occasionally and 10 pounds frequently, given the slight rightsided weakness. The claimant was judged able to occasionally climb and should
not work around heights or heavy machinery given reported occasional balance
problems and slight right sided weakness.

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(AR 35).

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The ALJ found Dr. Wagner’s opinion persuasive because “his findings [were] consistent

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with and supported by the overall record.” (AR 36). The ALJ also found the opinion persuasive

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“as Dr. Wagner has considered [Plaintiff’s] issues on his right side and has accounted for these

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issues in his proposed residual functional capacity, which is supported by the treatment record

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and his own examination findings.” (Id.)
The ALJ then proceeded to formulate a physical RFC that limited Plaintiff to light work
with additional restrictions, as follows:
[T]he claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except he can occasionally climb ramps and stairs,
but he should not climb ladders, ropes, or scaffolds and should have no workplace
hazards such as unprotected heights and moving machinery. In addition, he can
perform frequent handling and fingering with the right upper extremity.
(AR 30). The ALJ explained that the above RFC was “consistent with and supported by the
overall evidence, which indicates intact motor strength, normal EMG findings, mostly normal
examination findings, as well as Dr. Wagner’s examination report indicating minimal objective

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findings beyond slight limitation in motor strength on the right side.” (AR 36 (internal record

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citations omitted)).

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Plaintiff raises two challenges to the ALJ’s consideration of Dr. Wagner’s opinion. (ECF

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No. 12 at 13–16). Plaintiff first argues that Dr. Wagner’s opinion is “not consistent with the

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objective findings on MRI.” (Id. at 14). Plaintiff specifically contends that the MRI results do not

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support Dr. Wagner’s opinion in his report that Plaintiff’s back and neck pain were “most

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consistent with occasional muscle strain.” (Id.) Plaintiff, however, overlooks that Dr. Wagner

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actually reviewed Plaintiff’s past MRIs during the consultative examination. (AR 605). Dr.

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Wagner specifically noted: (1) an MRI of the lumbar spine, dated January 8, 2021, which Dr.

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Wagner stated showed degenerative joint disease, and (2) an MRI of the cervical spine, dated

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December 14, 2020, which Dr. Wagner stated showed “degenerative joint disease with a cord

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deformity and foraminal narrowing.” (Id.) And although Dr. Wagner opined that Plaintiff’s neck
and lower back pain were consistent with “occasional musculoligamentous strain,” he expressly
acknowledged that the MRI “does show some cord deformity and foraminal narrowing.” (AR
609–10).
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Moreover, the ALJ considered the MRI results when he formulated Plaintiff’s physical

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RFC. The ALJ summarized the MRI findings (AR 32–33) and explicitly stated that the physical

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RFC was based on the “MRI of the cervical spine” in addition to Plaintiff’s “subjective

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complaints of right upper extremity issues” and the “slightly limited strength on the right side

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indicated by Dr. Wagner.” (AR 36). Thus, the ALJ discussed the significance of the MRI results

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in the context of Dr. Wagner’s opinion. While Plaintiff argues that his MRI results could support
a different conclusion as to degree of his physical impairments and the persuasiveness of Dr.
Wagner’s opinion, this at most amounts to another “rational interpretation,” meaning that “the
decision of the ALJ must be upheld.” Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995); Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one
rational interpretation, it is the ALJ’s conclusion that must be upheld.”); Ahearn v. Saul, 988 F.3d
1111, 1115 (9th Cir. 2021) (stating that the Court “may not reweigh the evidence or substitute
[its] judgment for that of the ALJ”).
Second, Plaintiff appears to argue that the ALJ failed to consider Dr. Wagner’s assessment

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of his “lower extremity weakness and balance problems” and his need for a cane when he

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formulated the physical RFC. (ECF No. 12 at 15). But, as the Commissioner points out, the ALJ

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imposed certain limitations in the RFC based on Dr. Wagner’s opinion that Plaintiff had

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occasional balance problems and slight right-handed weakness. (AR 36). As for Plaintiff’s

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contention that the RFC failed to address his need for an assistive device, the ALJ explicitly noted

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that Plaintiff told Dr. Wagner that he rarely used a cane. (AR 30, AR 609). The ALJ also

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observed that Plaintiff’s treatment records did not mention that an assistive device was medically

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necessary, that Plaintiff presented with a normal gait during both of his consultative

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examinations, and that Plaintiff’s treating providers consistently reported that he had a normal

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gait upon examination. (Id. (citing AR 534, AR 626, AR 600, AR 608)).

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Accordingly, the Court concludes that Plaintiff has not shown error in the ALJ’s
consideration of Dr. Wagner’s opinion.
B. Step Two
Plaintiff next argues that the ALJ erroneously determined at step two that he did not have
any severe mental impairments. (ECF No. 12 at 16–18). In response, the Commissioner argues

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that the ALJ’s step two findings are supported by substantial evidence and free from legal error.

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(ECF No. 16 at 7–10).

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The Ninth Circuit has provided the following guidance regarding whether medically

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determinable impairments are severe at step two:
An impairment or combination of impairments may be found “not severe only if
the evidence establishes a slight abnormality that has no more than a minimal
effect on an individual’s ability to work.” [Smolen v. Chater, 80 F.3d 1273, 1290
(9th Cir. 1996)] (internal quotation marks omitted) (emphasis added); see Yuckert
v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). The Commissioner has stated that
“[i]f an adjudicator is unable to determine clearly the effect of an impairment or
combination of impairments on the individual’s ability to do basic work activities,
the sequential evaluation should not end with the not severe evaluation step.”
S.S.R. No. 85–28 (1985).

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Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005). A step two finding must be supported

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by substantial evidence, which “is such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Id. at 686.

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Here, as to mental impairments, the ALJ initially noted in his step two findings that
Plaintiff’s treatment records showed “a history of depression with some recent complaints of
depression that were treated with Lexapro by his general provider.” (AR 28 (internal record
citations omitted)). The ALJ also noted that the medical evidence did not include any counseling
or psychiatric treatment, despite Plaintiff’s allegations that he had seen a psychiatrist and
undergone counseling for depression. (Id.) The ALJ further observed that Plaintiff’s general
provider had diagnosed him with “major depressive disorder, single episode, unspecified.” (Id.)
Based on the general provider’s diagnosis and Plaintiff’s prescription for Lexapro, the ALJ found
that Plaintiff had a medically determinable impairment of depression. (Id. (citing AR 652)).
The ALJ, however, concluded that Plaintiff’s medically determinable impairment of

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depression was non-severe because “it does not cause more than minimal limitation in

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[Plaintiff’s] ability to perform basic mental work activities.” (AR 29). In reaching this

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determination, the ALJ addressed in detail the four functional areas set out in the “Paragraph B”

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criteria for evaluating mental impairments. (Id.). The ALJ’s analysis of the four functional areas

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specifically considered Plaintiff’s subjective statements about his mental limitations with the

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relevant objective medical evidence and Plaintiff’s September 2021 psychiatric consultative

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examination (AR 598–603), as follows:
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The first functional area is understanding, remembering or applying information.
In this area, the claimant has no more than a mild limitation. While the claimant
alleges significant memory problems (Exhibit 3E; testimony), his memory was
within normal limits at the consultative examination and was consistent with his
IQ tests (Exhibit 7F). The claimant also reported that he is able to manage his own
finances and drives (Exhibit 3E), and he typically presented to providers with
normal mental status findings (Exhibits 2F, p. 56; 11F, p. 6; 12F, pp. 5, 10; 13F,
p. 3).
The next functional area is interacting with others. In this area, the claimant has no
more than a mild limitation. The claimant testified that he lives with his son half
the time and his mother would regularly come over with food and to help him. He
reportedly spends time with others on the phone and texting, gets along with
authority figures, and has no problems getting along with family, friends,
neighbors, or others (Exhibit 3E). He also testified that he attends his son’s
sporting events.
The third functional area is concentrating, persisting or maintaining pace. In this
area, the claimant has no more than a mild limitation. While the claimant reported
that he was only able to pay attention for a few minutes (Exhibit 3E, p. 6), he was
able to answer questions and pay attention at the hearing that lasted over 45
minutes. He reported watching television and movies, driving, and an ability to
manage his own finances (Exhibit 3E). His concentration was adequate for
performing simple mathematical calculations at the consultative examination
(Exhibit 7F).

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The fourth functional area is adapting or managing oneself. In this area, the
claimant has no more than a mild limitation. While the claimant alleges limited
daily activities with the need for assistance with meal preparation and personal
care, his young son lives with him half the time and requires some degree of care
and transportation to school. Also, he told the psychological consultative examiner
that he was independent with his activities of daily living (Exhibit 7F) and he told
the physical consultative examiner that he cooked, drove, shopped, walked for
exercise, and was independent with his activities of daily living (Exhibit 8F).

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(AR 29). The ALJ concluded Plaintiff’s depression was non-severe because it caused “no more

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than ‘mild’ limitation in any of the functional areas and the evidence does not otherwise indicate

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that there is more than a minimal limitation in [Plaintiff’s] ability to do basic work activities.”

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(AR 29–30).

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In concluding that Plaintiff’s depression was a non-severe impairment, the ALJ also relied
on Plaintiff’s psychiatric consultative examination in September 2021. (AR 28). In particular, the
ALJ pointed out that the consultative examiner “did not provide any diagnoses for mental
impairments” and rendered an opinion that did not place any limits on work-related mental

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functioning. (Id.) The ALJ found the consultative examiner’s report and opinion to be “generally

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persuasive” because Plaintiff’s “presentation [at the consultative examination] was similar to

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reports of his mental status in the treatment record.” (Id.) The ALJ concluded that his finding that

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Plaintiff’s depression was non-severe was “consistent with the opinion of [consultative examiner]

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Dr. Swanson, who found no limits on work-related mental functioning” and was “supported by

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the overall record, as well as Dr. Swanson’s examination report.” (AR 28–29). Based on the
above findings, the Court finds that substantial evidence supports the ALJ’s determination that
Plaintiff’s depression is a non-severe impairment.
Plaintiff additionally argues that the ALJ failed to consider a state agency medical
consultant’s finding at the initial level of review that he has a severe neurocognitive disorder.

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(ECF No. 12 at 16). The Court observes that while the disability form Plaintiff references listed
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neurocognitive disorders as a severe impairment, it also included a psychiatric review technique
(“PRT”) which concluded that “[n]o mental medically determinable impairments [are]
established.” (AR 76–77). The form also included an additional explanation that:
There is evidence in file noting the claimant is taking Lexapro but little
explanation as to why. There does not appear to be a formal diagnosis of anxiety
or depression and the claimant’s mental status examination are benign. At the
current consultative examination the claimant’s mood is euthymic and affect is full
range. There is no indication on testing of any cognitive impairment and the
provider gave No Diagnosis. No mental MDI [(medically determinable
impairment)].
(AR 77). Additionally, the Court observes that at the reconsideration level, the same disability

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form did not list any severe mental impairments and the PRT again stated that “[n]o mental

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medically determinable impairments [are] established.” (AR 94–95). Significantly, aside from the

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single mention in the disability form at the initial level, Plaintiff does not allege that any of his

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providers diagnosed him with a neurocognitive disorder.

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Plaintiff also argues that the ALJ failed to consider nonmedical evidence consisting of his

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subjective complaints and hearing testimony regarding mental limitations. (ECF No. 12 at 18).

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But, as discussed earlier, the ALJ considered Plaintiff’s subjective complaints and hearing

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testimony in assessing the paragraph B criteria for evaluating mental impairments. (AR 29).

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Based on the foregoing, the Court concludes that Plaintiff has not shown error in the

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ALJ’s step two findings regarding Plaintiff’s mental impairments.
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Moreover, even if Plaintiff had shown that the ALJ erred by not finding that Plaintiff had

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severe mental impairments of depression or neurocognitive disorder, the error would be harmless.

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Any error in failing to find an impairment severe at step two is harmless where the ALJ considers

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the impairment in subsequent steps of the analysis. See Lewis v. Astrue, 498 F.3d 909, 911 (9th

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Cir. 2007). Here, the ALJ considered Plaintiff’s depression in his subsequent analysis. (See, e.g.,

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AR 33–34). And as for neurocognitive disorder, the Court notes that in formulating Plaintiff’s
RFC, the ALJ specifically addressed the state agency medical consultant’s opinions and explained
why he found their opinions unpersuasive. (AR 36). In so doing, the ALJ noted in particular that
“[t]he State agency medical consultants did not have the full record to review, as additional
records from Exhibit 9F through Exhibit 13F were added after the reconsideration review.” (Id.)
Further, in formulating Plaintiff’s RFC, the ALJ determined that Plaintiff did not have any
functional work limitations due to mental impairments. The ALJ specifically noted that Plaintiff’s
neurological examinations were generally normal and that he was stable with medication. (AR 33
(“Neurological exam at this time indicated normal behavior, thoughts, and higher mental
functions, normal language, cranial nerve, motor strength, sensation, gait, and finger to nose

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testing, and reflexes were 1+ bilateral and symmetric”) (citing AR 534); AR 33 (“[L]anguage,

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cranial nerves, motor exam, and cerebellar exams were observed as normal”) (citing AR 388);

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AR 34 (“claimant reported experiencing brain fog . . . [but] [e]xam was normal . . .”); AR 34

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(“Exam was normal with normal behavior, content of thought, higher mental functioning, gait,

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and sensation, motor strength was 5/5, and there was decreased right sided neck movement and

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right biceps reflexes. He was continued on Lexapro and gabapentin again and he was referred for

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cervical epidural injection and told to relax, as his depression increased his pain.”) (citing AR

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626)); AR 31 (noting Plaintiff’s hearing testimony that Lexapro was “helpful” in treating his

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depression).

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C. Plaintiff’s Subjective Complaints
Plaintiff argues that the ALJ failed to provide specific, clear and convincing reasons to
reject his subjective complaints and thus failed to account for all of his limitations in formulating
the RFC. (ECF No. 12 at 19–24). The Commissioner counters that the ALJ’s reasoning was
sufficient to discount Plaintiff’s subjective complaints. (ECF No. 16 at 10–13).

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As to a plaintiff’s subjective complaints, the Ninth Circuit has provided the following

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guidance:
Once the claimant produces medical evidence of an underlying impairment, the
Commissioner may not discredit the claimant’s testimony as to subjective
symptoms merely because they are unsupported by objective evidence. Bunnell v.
Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Cotton v. Bowen,
799 F.2d 1403, 1407 (9th Cir. 1986) (“it is improper as a matter of law to discredit
excess pain testimony solely on the ground that it is not fully corroborated by
objective medical findings”). Unless there is affirmative evidence showing that the
claimant is malingering, the Commissioner’s reasons for rejecting the claimant’s
testimony must be “clear and convincing.” Swenson v. Sullivan, 876 F.2d 683,
687 (9th Cir. 1989). General findings are insufficient; rather, the ALJ must identify
what testimony is not credible and what evidence undermines the claimant’s
complaints.

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Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996). However, “[t]he

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standard isn’t whether [the] court is convinced, but instead whether the ALJ’s rationale is clear
enough that it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).
An ALJ’s reasoning as to subjective testimony “must be supported by substantial evidence in the
record as a whole.” Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995); see Carmickle v.
Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Accordingly, our next task is
to determine whether the ALJ’s adverse credibility finding of Carmickle’s testimony is supported
by substantial evidence under the clear-and-convincing standard.”).
Here, as to Plaintiff’s subjective complaints, the ALJ concluded that Plaintiff’s “medically
determinable impairments could reasonably be expected to cause [his] alleged symptoms.” (AR
32). Accordingly, because there is no affirmative evidence showing that Plaintiff was

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malingering, the Court looks to the ALJ’s decision for clear and convincing reasons, supported by

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substantial evidence, for not giving full weight to Plaintiff’s symptom testimony.

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The ALJ provided the following recitation of Plaintiff’s subjective complaints and his
daily activities:
The claimant testified that he cannot work because his right side is either weak or
numb from his feet to his arms. He is not as smart as he used to be, and any math
problems take longer to do when he used to do them in his head in seconds. He can
no longer do math in his head. He has to move around after sitting for a few
minutes. He has trouble writing for more than three minutes because his hand feels
like it locks up. He is not getting any treatment due to the lack of insurance, and
his general provider does not accept MediCal or take cash. He was seeing a
cardiologist, neurologist, nephrologist, and urologist before he lost his insurance.
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He is taking medications for his brain and blood pressure, and the others he does
not know. He could not remember when he began taking Lexapro for depression
and he ran out of the medication a few days prior and did not have any refills. The
medication was helpful. He does not use a cane at home, but he keeps one in his
car for when he needs it. On a typical day, he said when he has his son, his son
will wake him up and he takes his son to school, which is 400 to 500 meters away.
He may have coffee, read news online, and rest the remainder of the day. His son
walks home from school if weather permits, otherwise, he will pick him up. They
do not do a lot of activities. He can’t play sports with his son for more than a few
minutes. His son is on a baseball team, and he will watch the practices.
He testified he can read on his phone for five or six minutes before he takes a
break for 30 minutes and lays down. He lays down most of the day. He feels like
he cannot do anything. His mom brings him food and does most of his grocery
shopping. He must take a 20-to-30-minute break after using his right hand for a
few minutes. He does not have difficulty using his left hand. He can reach
overhead with the right hand to get an item such as a water glass or coffee mug, or
milk or juice from the refrigerator. He can comfortably lift a half gallon of milk
with his right hand. He will drop anything that weighs more than that. He can
stand for 15 to 20 minutes before he becomes uncomfortable. He tries to walk
around the block on days he feels semi-normal. The longest he can hold his head
in one position on the phone is for three to five minutes before he feels discomfort.
If he doesn’t stop, the discomfort will get worse. He drives when he is feeling
okay. If he feels weakness on his right side, he does not drive. He drives two or
three times a week locally. He can dress himself with some difficulty on some
days. He enjoyed working and has worked since he was 15 years old, and he is sad
to have the brain fog he experiences. Sometimes he cannot find the words to
express himself. He does not socialize often, and he used to be a social person,
who had friends over and would go out to dinner.
(AR 31–32).
Following this recitation, the ALJ stated that Plaintiff’s testimony regarding the limiting

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effects and severity of his impairments was “not entirely consistent with the medical evidence and

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other evidence in the record.” (AR 32). In particular, the ALJ pointed out that while Plaintiff

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indicated in his function report and hearing testimony that he had “very limited daily activities

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and [needed] assistance with personal care,” Plaintiff told Dr. Wagner during the consultative

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examination that he “cooked, shopped, and was independent with his daily activities.” (Id. (citing
AR 606 (consultative examination where Plaintiff reported that “He cooks and cleans. He drives,
shops and performs his own activities of daily living without assistance and walks some for
exercise”)).
In addition to the above inconsistency in daily activities, the ALJ noted that Plaintiff’s

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allegations of “significant weakness in his body and an ability to perform activities for only very

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short periods” were inconsistent with the medical evidence, with the ALJ specifically highlighting

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that Plaintiff had “generally normal” examinations as well as normal nerve conduction studies.

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(AR 32). The ALJ then provided an overview of Plaintiff’s medical treatment records. (AR 32–

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34). In so doing, the ALJ noted among other things that: (1) Plaintiff had normal neurological

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and/or physical examinations during multiple treatment visits (AR 32–34 (citing e.g., AR 388,
AR 432, AR 534, AR 577, AR 626, AR 628, AR 637, AR 664, AR 671)); (2) a brain MRI, dated
December 9, 2020, showed “no evidence of acute intracranial abnormality” (AR 382); (3) a
February 2021 MRI of the head “showed minimal nonspecific white matter changes and the
remainder of the study was normal” (AR 545); (4) an “essentially unremarkable” MRI angiogram

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of the brain (AR 543); (5) normal nerve conduction studies in February 2021 (AR 535–37); (6) an
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initial cardiac workup in January 2021 where Plaintiff was diagnosed with atrial fibrillation and
“aggressive blood pressure control was recommended” (AR 499), but a six-month follow-up

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cardiac visit “indicated normal exam and a diagnosis of hypertensive heart disease without

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congestive heart failure” with the provider reporting that no “further intervention was indicated or

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necessary” (AR 637–38); and (7) normal exams and no reported kidney pain during nephrology

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visits in 2022, despite an ultrasound revealing the presence of a kidney stone (AR 641–46). After

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discussing the medical evidence, the ALJ concluded that:
Overall, the claimant had symptoms and findings related to his severe
impairments. However, treatment was conservative throughout the record and his
conditions were treated with medication only. He did not require significant
intervention, did not require emergent care, and was generally stable on
medications. He also had no neurological findings and nerve conduction studies
were normal. Regardless, the undersigned has provided for the claimant’s reported
right hand symptoms, in the residual function capacity.

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(AR 34).

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Upon review of the record, the Court concludes that the ALJ provided “findings

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sufficiently specific to permit the [C]ourt to conclude that the ALJ did not arbitrarily discredit

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[Plaintiff’s] testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); see Lambert v.

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Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (“Our cases do not require ALJs to perform a line-by-

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line exegesis of the claimant’s testimony, nor do they require ALJs to draft dissertations when

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denying benefits.”). The ALJ provided clear and convincing reasons as to why the medical
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evidence did not support Plaintiff’s allegations concerning the severity and limiting effects of his

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impairments. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (noting

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that conflicts between testimony and objective medical evidence supported discounting a

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plaintiff’s credibility); Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“[E]vidence of

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medical treatment successfully relieving symptoms can undermine a claim of disability.”);

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Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain testimony cannot
be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the
medical evidence is still a relevant factor in determining the severity of the claimant’s pain and its
disabling effects.”). Further, the ALJ made a reasonable determination that Plaintiff’s statements
during his consultative examinations contradicted his hearing testimony regarding his daily

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activities. See Smartt, 53 F.4th at 499 (“An ALJ may also consider whether the claimant engages
in daily activities inconsistent with the alleged symptoms. Even if the claimant experiences some
difficulty or pain, her daily activities may be grounds for discrediting the claimant’s testimony to
the extent that they contradict claims of a totally debilitating impairment.”).
Plaintiff argues the ALJ failed to consider his complaints of medication side effects and

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that he needed an assistive device. (ECF No. 12 at 21). However, as the Commissioner points out,

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the ALJ acknowledged Plaintiff’s complaints of side effects in his treatment records and noted

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that Plaintiff’s medical providers adjusted Plaintiff’s medication regime to resolve the side effects

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he was experiencing. (See, e.g., AR 33 (after Plaintiff reported feeling somnolence during a

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March 2021 visit, treating provider changed Plaintiff’s prescribed medications, specifically

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discontinuing two medications); id. (noting that “[p]roviders switched the claimant from

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metoprolol to [i]nderal to help the palpitations and tremors”)). And as for Plaintiff’s alleged need

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for an assistive device, the ALJ noted that Plaintiff testified during the hearing that he did not use

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a cane at home and only kept one in his car for when he needed it, and that Plaintiff previously

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reported during a consultative examination that he rarely used a cane. (AR 30 (citing AR 54, AR

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609)). Notably, the ALJ also observed that there was nothing in Plaintiff’s treatment records
reflecting that any provider had determined an assistive device was medically necessary, that
Plaintiff presented with a normal gait during both of his consultative examinations, and that
Plaintiff’s treating providers had also noted he had a normal gait upon examination. (Id. (citing

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AR 534, AR 626, AR 600, AR 608)). As such, the ALJ provided specific, clear and convincing

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reasons for discounting Plaintiff’s alleged medication side effects and his alleged need for an

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assistive device.

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In sum, the Court concludes that the ALJ provided clear and convincing reasons,

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supported by substantial evidence, for not giving full weight to Plaintiff’s subjective complaints.

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II.

CONCLUSION AND ORDER
Based on the foregoing, the decision of the Commissioner of Social Security is affirmed.

The Clerk of Court is directed to enter judgment in favor of the Commissioner of Social Security
and to close this case.
IT IS SO ORDERED.

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Dated:

March 11, 2025

/s/
UNITED STATES MAGISTRATE JUDGE

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