Sujo v. SSA

Filing 17

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/15/2016. Plaintiff's 14 Motion for Summary Judgment is DENIED and Commissioner's 15 Cross-Motion for Summary Judgment is GRANTED. Judgment is entered for defendant. This action is CLOSED. (Marciel, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MERLENE FAY WILSON SUJO, 12 Plaintiff, 13 14 15 No. 2:15-cv-1049-CKD v. ORDER CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 16 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 18 19 (“Commissioner”) denying plaintiff’s application for Supplemental Security Income (“SSI”) 20 under Title XVI of the Social Security Act (“Act”). For the reasons discussed below, the court 21 will deny plaintiff’s motion for summary judgment and grant the Commissioner’s cross-motion 22 for summary judgment. 23 I. BACKGROUND Plaintiff, born May 31, 1955, applied for SSI benefits on January 13, 2009, alleging 24 25 disability beginning August 26, 2008. Administrative Transcript (“AT”) 174. Plaintiff alleged 26 she was unable to work due to diabetes, high blood pressure, back pain, carpal tunnel syndrome, 27 headaches, and depression. AT 201. In a decision dated November 23, 2010, the ALJ 28 //// 1 1 determined that plaintiff was not disabled.1 AT 13-23. However, this action was remanded for 2 further proceedings by the United States District Court after plaintiff appealed the ALJ’s final 3 decision. AT 803-14. Accordingly, further administrative proceedings were held in this matter 4 and, on May 28, 2014, the ALJ again determined that plaintiff was not disabled. AT 615-28. In 5 support of that determination, the ALJ made the following findings (citations to 20 C.F.R. 6 omitted): 7 1. The claimant has not engaged in substantial gainful activity since December 29, 2008, the application date. 8 2. The claimant has the following severe impairments: status post L3-4 discectomy and fusion surgery, multilevel cervical 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 2 28 1 degenerative disc changes and C6-7 disc protrusion, carpal tunnel syndrome, obesity and diabetes. 2 3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 3 4 4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of both medium and light work as defined in 20 CFR 416.967(c). 5 6 7 5. The claimant is capable of performing past relevant work as a van driver, a merchandise driver, a casino hostess, a stock clerk and a flagger. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional capacity. 8 9 10 6. The claimant has not been under a disability, as defined in the Social Security Act, since December 29, 2008, the date the application was filed. 11 12 AT 618-28. 13 II. ISSUES PRESENTED 14 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 15 disabled: (1) improperly considered the opinion of Family Nurse Practitioner Deanna McConnell 16 (“FNP McConnell”) when determining plaintiff’s residual functional capacity (“RFC”); and (2) 17 improperly found plaintiff’s testimony regarding the extent of her pain and symptoms to be less 18 than fully credible. 19 III. 20 LEGAL STANDARDS The court reviews the Commissioner’s decision to determine whether (1) it is based on 21 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 22 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 23 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 24 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 25 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 26 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 27 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 28 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 3 1 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 2 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 3 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 4 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 5 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 6 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 7 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 8 administrative findings, or if there is conflicting evidence supporting a finding of either disability 9 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 10 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 11 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 12 IV. ANALYSIS The ALJ did not err in Assessing FNP McConnell’s Opinion 13 A. 14 First, plaintiff argues that the ALJ erred in assigning “minimal weight” to the opinion of 15 FNP McConnell because the ALJ failed to provide germane reasons in support of that 16 determination. As a family nurse practitioner, FNP McConnell qualifies as an “other source” under the 17 18 Social Security Administration’s regulations.2 20 C.F.R. § 416.913(d)(1) (including nurse 19 practitioners as an “other source”). Although an ALJ may give more weight to an opinion of an 20 “acceptable medical source” over an “other source,” see 20 CFR § 416.927; Gomez v. Chater, 74 21 F.3d 967, 970-71 (9th Cir. 1996), the ALJ may not completely disregard an opinion from an 22 “other source” merely because it is not an “acceptable medical source.” See Social Security 23 Ruling (“SSR”)3 06-03p (“[T]here is a requirement to consider all relevant evidence in an 24 2 25 26 27 28 Both plaintiff and the Commissioner agree that FNP McConnell was not an “acceptable medical source” within the meaning of the Social Security Administration’s regulations. ECF No. 14 at 4; ECF No. 15 at 10. Instead, both parties agree that FNP McConnell was an “other medical source” and that the ALJ was required to provide only germane reasons for discounting her opinion. Id. 3 The Secretary issues Social Security Rulings to clarify the Secretary’s regulations and policy.” 4 1 individual’s case record . . . .”); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (noting 2 that the Regulations require an ALJ to “consider observations . . . by non-medical sources”). As 3 the Commissioner has recognized, “the case record should reflect the consideration of opinions 4 from medical sources who are not ‘acceptable medical sources’ and from ‘non-medical sources’ 5 who have seen the claimant in their professional capacity . . . [T]he adjudicator generally should 6 explain the weight given to opinions from these ‘other sources[.]’” SSR 06-03p, 2006 WL 7 2329939, at *6. “Although [the Regulations] do not address explicitly how to evaluate evidence 8 (including opinions) from ‘other sources,’ they do require consideration of such evidence when 9 evaluating an ‘acceptable medical source’s’ opinion.” Id. The ALJ may discount testimony from 10 “other sources” if the ALJ “gives reasons germane to each witness for doing so.” Molina v. 11 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Turner v. Comm’r of Soc. Sec., 613 F.3d 12 1217, 1224 (9th Cir. 2010)); Meza v. Astrue, 2012 WL 5874461, at *3 (C.D. Cal. Nov. 20, 2012) 13 (unpublished) (citing Molina, 674 F.3d at 1111) (“Statements from ‘other sources’ are competent 14 evidence that an ALJ must take into account, unless he expressly determines to disregard such 15 evidence and gives reasons germane to each witness for doing so.”). 16 The ALJ assigned “minimal weight” to FNP McConnell’s opinion because she was not 17 “an acceptable medical source” and “her findings of such substantial limitation are not consistent 18 with the longitudinal medical record.” AT 625-26. Plaintiff contends that these were not 19 germane reasons for discounting FNP McConnell’s opinion. 20 First, plaintiff contends that the Commissioner’s own rulings prevented the ALJ from 21 relying on the fact that FNP McConnell was not an “acceptable medical source” as a reason to 22 discount her opinion. In particular, plaintiff asserts that the ALJ’s reasoning contravened the 23 24 25 26 27 Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991). Although “SSRs do not carry the ‘force of law,’ . . . they are binding on ALJs nonetheless. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009) (citation omitted). Social Security rulings “constitute Social Security Administration interpretations of the statute it administers and of its own regulations,” and are given deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 28 5 1 standards set forth in Social Security Ruling (“SSR”)4 06-03p, which requires consideration of 2 opinions issued by medical sources who are not acceptable medical sources and notes that it may 3 be appropriate under certain circumstances for an ALJ to assign greater weight to the opinion of 4 such a source over that of an opinion provided by an acceptable medical source. 2006 WL 5 2329939, at *5. Therefore, plaintiff contends, it was improper for the ALJ to have discounted 6 FNP McConnell’s opinion based on the fact that she was not an acceptable medical source. A review of the ALJ’s decision, however, shows that the ALJ properly assessed FNP 7 8 McConnell’s opinion under the applicable standards. The ALJ considered FNP McConnell’s 9 opinion and did not totally discount it merely because FNP McConnell was not an acceptable 10 medical source. Instead, the ALJ assigned her opinion “minimal weight,” and determined that the 11 physical RFC opinions of Dr. Kinnison, an acceptable medical source who examined plaintiff for 12 purposes of determining disability under the Act, and Dr. Dann, a State agency reviewing 13 physician who was also an acceptable medical source, were entitled to greater weight. AT 624- 14 26. SSR 06-03 specifically states: 15 “[t]he fact that a medical opinion is from an ‘acceptable medical source’ is a factor that may justify giving that opinion greater weight than an opinion from a medical source who is not an “acceptable medical source” because, as we previously indicated in the preamble to our regulations . . . ‘acceptable medical sources’ ‘are the most qualified health care professionals.’” 16 17 18 19 20 2006 WL 2329939, at *5 (citation omitted). Accordingly, the ALJ appropriately assigned greater 21 weight to the opinions in the record issued by acceptable medical sources regarding the functional 22 impact of plaintiff’s physical impairments over that of the contradictory opinion provided by FNP 23 McConnell, a non-appropriate medical source. In turn, it was appropriate for the ALJ to cite the 24 fact that FNP McConnell was not an appropriate medical source as a factor in support of his 25 4 26 27 28 Social Security Rulings “represent precedent final opinions and orders and statements of policy and interpretations that we have adopted.” 20 C.F.R. § 402.35(b)(1). Social Security Rulings are “binding on all components of the Social Security Administration.” Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984); cf. Silveira v. Apfel, 204 F.3d 1257, 1260 (9th Cir. 2000) (“This court defer[s] to Social Security Rulings . . . unless they are plainly erroneous or inconsistent with the Act or regulations.”). 6 1 determination that her opinion was entitled to reduced weight. 2 Moreover, the ALJ also provided an additional reason for discounting FNP McConnell’s 3 opinion that was sufficiently germane: that the longitudinal record regarding plaintiff’s physical 4 impairments contradicted the extreme limitations opined by FNP McConnell. AT 624-25. 5 Plaintiff argues that the ALJ failed to elaborate on this reasoning in sufficiently specific detail 6 such that it cannot be considered a germane reason in support of his determination. While the 7 ALJ did not fully elaborate on what evidence supported this reasoning in his immediate 8 discussion of FNP McConnell’s opinion, he provided substantial support for this reasoning 9 throughout his broader discussion of the medical evidence with regard to plaintiff’s RFC. See AT 10 621-27. 11 Indeed, the medical evidence in the record generally shows that plaintiff’s physical 12 condition throughout the relevant period did not cause limitations nearly as severe as those opined 13 by FNP McConnell. As the ALJ discussed, after plaintiff underwent a second spinal fusion 14 surgery in 2007, there is no evidence in the record that plaintiff received anything more than 15 conservative care or treatment for her back impairments. AT 623. To be sure, plaintiff’s medical 16 records from the relevant period show that she received care only in the form of medications and 17 recommendations to diet and exercise and that the symptoms from her physical impairments were 18 improving and generally well controlled with that course of treatment. E.g., AT 1000-02, 1007- 19 09, 1014-16, 1025, 1037, 1058, 1073. There is no evidence in the record suggesting she required 20 additional surgery, had to undergo physical therapy, or received additional chiropractic or pain 21 management care for her back condition during the relevant period. 22 Similarly, the record shows that plaintiff successfully underwent surgeries to release 23 trigger thumbs on both of her hands — with a surgery for her right hand occurring in February 24 2009, and for her left hand in March 2010. AT 407-08, 412. After these surgeries, physical 25 examination showed that both of plaintiff’s upper extremities had intact sensitivity with normal 26 muscle strength in the left extremity and only slightly diminished strength in the right extremity. 27 AT 984. The record does not indicate that plaintiff required anything more than conservative 28 treatment after those surgeries took place. Furthermore, plaintiff testified that she retained the 7 1 manual dexterity to complete a number of daily activities with only some moderate difficulties. 2 AT 765-66, 768. 3 Despite the objective medical evidence indicating that plaintiff’s spinal and upper 4 extremity-related impairments were improved with successful surgeries and that plaintiff’s 5 conditions were relatively well controlled with conservative care after those surgeries, FNP 6 McConnell opined that plaintiff had extreme limitations stemming from those impairments, such 7 as her findings that plaintiff could lift and carry no more than 10 pounds rarely; sit, stand, or walk 8 fewer than 2 hours total and fewer than 4 hours combined in an 8-hour workday; rarely 9 bend/stoop, squat, crawl, climb, or crouch; and never climb, kneel, reach up, or push and pull. 10 AT 977. The ALJ was permitted to rely on this evidence to discount FNP McConnell’s opinion. 11 See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (holding that the ALJ properly 12 discounted a treating physician’s functional recommendations that “were so extreme as to be 13 implausible and were not supported by any findings made by any doctor”); Meanel v. Apfel, 172 14 F.3d 1111, 1113 (9th Cir. 1999) (treating physician’s conclusory, minimally supported opinion 15 rejected). 16 The ALJ also found that the functional limitations opined by Dr. Kinnison and Dr. Dann 17 were well supported by the medical evidence in the record — a determination that plaintiff does 18 not contend to have been erroneous. AT 625-26. Those two physicians opined functional 19 limitations far less severe than those opined by FNP McConnell. See AT 341-45, 981-85. At 20 bottom, there was substantial evidence in the record supporting the ALJ’s determination that the 21 severe physical functional limitations opined by FNP McConnell were not supported by 22 plaintiff’s longitudinal medical records. 23 Plaintiff also asserts that the long-standing treatment relationship between FNP 24 McConnell and plaintiff entitles her opinion to greater weight than what was assigned by the ALJ. 25 While the extent of the treatment relationship is one factor for the ALJ to consider, it is not 26 controlling, because in virtually every case the treating source would have a more extensive 27 relationship with the claimant than a consultative specialist. Here, the ALJ appropriately 28 determined that the physical limitations opined by Dr. Kinnison and Dr. Dann — acceptable 8 1 2 medical sources — were more persuasive in light of the evidence in the record. In short, the ALJ provided germane reasons for assigning lesser weight to FNP 3 McConnell’s opinion that were supported by substantial evidence from the record. Accordingly, 4 the ALJ did not err in considering that medical evidence. The ALJ’s Adverse Credibility Determination was not Erroneous 5 B. 6 Next, plaintiff argues that the ALJ erred by determining that plaintiff’s testimony 7 regarding the intensity, persistence, and limiting effects of her symptoms was not entirely 8 credible. 9 The ALJ determines whether a disability applicant is credible, and the court defers to the 10 ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g., 11 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an 12 explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. 13 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be 14 supported by “a specific, cogent reason for the disbelief”). 15 In evaluating whether subjective complaints are credible, the ALJ should first consider 16 objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 17 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ 18 then may consider the nature of the symptoms alleged, including aggravating factors, medication, 19 treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the 20 applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent 21 testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a 22 prescribed course of treatment, and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d 23 1273, 1284 (9th Cir. 1996); see generally SSR 96-7p; SSR 95-5p; SSR 88-13. Work records, 24 physician and third party testimony about nature, severity and effect of symptoms, and 25 inconsistencies between testimony and conduct also may be relevant. Light v. Social Security 26 Administration, 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek treatment for an allegedly 27 debilitating medical problem may be a valid consideration by the ALJ in determining whether the 28 alleged associated pain is not a significant non-exertional impairment. See Flaten v. Secretary of 9 1 HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, on his or her own 2 observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989), which cannot 3 substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990). 4 “Without affirmative evidence showing that the claimant is malingering, the Commissioner’s 5 reasons for rejecting the claimant’s testimony must be clear and convincing.” Morgan v. 6 Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 7 Here, the ALJ found plaintiff’s testimony to be less than fully credible because plaintiff’s 8 statements regarding the intensity, persistence, and limiting effects of her symptoms were 9 inconsistent with the evidence of plaintiff’s daily living activities and with the medical evidence 10 in the record. AT 622-25. These were clear and convincing reasons in support of the ALJ’s 11 adverse credibility determination. 12 First, the ALJ properly determined that evidence of plaintiff’s daily activities in the record 13 indicated that plaintiff’s functional capacity was more robust than what plaintiff claimed. “While 14 a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may 15 discredit a claimant’s testimony when the claimant reports participation in everyday activities 16 indicating capacities that are transferable to a work setting . . . Even where those activities suggest 17 some difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the 18 extent that they contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112- 19 13 (citations and quotation marks omitted); see also Burch, 400 F.3d at 680 (ALJ properly 20 considered claimant’s ability to care for her own needs, cook, clean, shop, interact with her 21 nephew and boyfriend, and manage her finances and those of her nephew in the credibility 22 analysis); Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ’s 23 determination regarding claimant’s ability to “fix meals, do laundry, work in the yard, and 24 occasionally care for his friend’s child” was a specific finding sufficient to discredit the 25 claimant’s credibility). 26 Here, plaintiff testified that she cared for her own personal needs and did household 27 chores such as laundry, vacuuming, mopping, and scrubbing the bathtub and shower. AT 765. 28 Plaintiff also testified that she cooked meals four times a week, went grocery shopping every 10 1 week, and went out to dinner on an almost weekly basis. AT 765, 768. She further stated that 2 she watched her three young grandchildren on the weekends. AT 768, 770. Furthermore, the 3 third party reports in the record indicate that plaintiff also performed activities such as caring for 4 her cats, cleaning dishes, and driving a car, and went outside “as often as she wants.” AT 209- 5 226. 6 Such reported activities belied plaintiff’s claims that her impairments caused her knees to 7 buckle whenever she would “bend, lift, sit, [or] stand for any length of time.” AT 201. They also 8 undermined her more general claim that her impairments rendered her unable to perform any full 9 time work. To be sure, the record also contains some evidence that plaintiff’s impairments 10 caused her to be somewhat inhibited in her ability to physically perform some of the above daily 11 activities. However, it is the function of the ALJ to resolve any ambiguities, and the court finds 12 the ALJ’s assessment regarding the significance of plaintiff’s reported activities to be reasonable 13 and supported by substantial evidence. See Rollins, 261 F.3d at 857 (affirming ALJ’s credibility 14 determination even where the claimant’s testimony was somewhat equivocal about how regularly 15 she was able to keep up with all of the activities and noting that the ALJ’s interpretation “may not 16 be the only reasonable one”). 17 The ALJ also properly considered the fact that plaintiff’s claims of debilitating symptoms 18 and pain were contradicted by the medical evidence in the record indicating that plaintiff’s 19 impairments were less functionally impactful. Here, the medical record was replete with 20 evidence showing that plaintiff’s impairments caused her limitations that were less than disabling. 21 For instance, Dr. Kinnison, an examining physician, opined that that plaintiff had the ability to lift 22 and carry 50 pounds occasionally and 25 pounds frequently, stand and/or walk up to 6 hours total 23 in an 8-hour workday, and sit, balance, kneel, crawl, reach handle, finger, and feel without 24 limitation. AT 985. Similarly, the objective clinical findings regarding plaintiff’s physical 25 impairments repeatedly showed that plaintiff had negative straight leg raises, largely normal 26 manual dexterity and muscle strength after undergoing surgery on both hands, and generally 27 exhibited normal examination findings. E.g., AT 340, 412, 430, 983-85. Although lack of 28 medical evidence cannot form the sole basis for discounting plaintiff’s subjective symptom 11 1 testimony, it was nevertheless a relevant factor for the ALJ to consider. Burch v. Barnhart, 400 2 F.3d 676, 681 (9th Cir. 2005). Accordingly, the ALJ did not err by considering such evidence in 3 support of his adverse credibility determination.5 4 V. CONCLUSION 5 For the reasons stated herein, IT IS HEREBY ORDERED that: 6 1. Plaintiff’s motion for summary judgment (ECF No. 14) is denied; 7 2. The Commissioner’s cross-motion for summary judgment (ECF No. 15) is granted; 8 and 9 10 3. Judgment is entered for the Commissioner. Dated: March 15, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 11 12 13 14 11 sujo1049.ss 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Plaintiff also appears to assert in her motion for summary judgment that the ALJ erred in his consideration of the third party statements provided by plaintiff’s mother and daughter-in-law. However, a review of those statements demonstrate that these two third party witnesses provided testimony regarding the extent of plaintiff’s symptoms and limitations that largely reflected those alleged by plaintiff herself. See AT 209-26. Indeed, plaintiff herself appears to admit that their statements were similar to plaintiff’s own testimony. See ECF No. 14 at 12 (“[t]hey both provided information similar to [plaintiff] in that, while she is not severely incapacitated, she does have functional limitations and experiences pain when engaging in activities on a sustained basis.”). When the ALJ provides clear and convincing reasons for discounting a claimant’s testimony and the third-party lay witness’s testimony is similar to the claimant’s testimony, the ALJ’s reasons for discounting the claimant’s testimony may also constitute germane reasons for rejecting the third-party lay witness’s testimony. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009); see also Molina, 674 at 1114. Furthermore, even when the ALJ errs by failing to explain his or her reasons for disregarding a layperson’s testimony, such error is harmless if that layperson’s testimony largely reflects the limitations described by the claimant and the ALJ provides clear and convincing reasons for discounting the claimant’s testimony, because the layperson’s testimony in such a circumstance is “inconsequential to the ultimate nondisability determination in the context of the record as a whole.” Molina, 674 F.3d at 1122 (quotation marks omitted). Accordingly, even assuming, without deciding, that the ALJ did not properly consider the third party statements provided by plaintiff’s mother and daughter-in-law such an error would have been harmless because, as discussed above, the ALJ provided clear and convincing reasons for discounting plaintiff’s similar testimony. 12

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