Bell v. Saul

Filing 28

ORDER by Judge Thomas S. Hixson granting 22 Plaintiff's Motion for Summary Judgment; denying 25 Defendant's Cross-Motion for Summary Judgment. (tshlc1, COURT STAFF) (Filed on 1/10/2022)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DIANE B.,1
Plaintiff,

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ORDER RE: CROSS-MOTIONS FOR
SUMMARY JUDGMENT

v.

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Re: Dkt. Nos. 22, 25

KILOLO KIJAKAZI,
Defendant.

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United States District Court
Northern District of California

Case No. 21-cv-00794-TSH

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I.

INTRODUCTION

Plaintiff Diane B. moves for summary judgment to reverse the decision of Defendant

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Kilolo Kijakazi, Acting Commissioner of Social Security, partially denying her claim for

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disability benefits under the Social Security Act, 42 U.S.C. § 401 et seq. ECF No. 22. Defendant

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cross-moves to affirm. ECF No. 25. Pursuant to Civil Local Rule 16-5, the matter is submitted

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without oral argument. Having reviewed the parties’ positions, the Administrative Record

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(“AR”), and relevant legal authority, the Court hereby GRANTS Plaintiff’s motion and DENIES

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Defendant’s cross-motion for the following reasons.2

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II.

PROCEDURAL HISTORY

On September 18, 2015, Plaintiff filed an application for Social Security Disability

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Insurance and Supplemental Security Income benefits, alleging disability beginning on April 1,

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2012. AR 314-26. The application was initially denied on November 24, 2015, and again on

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Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case Management of the Judicial
Conference of the United States.
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The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF
Nos. 9, 11.

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reconsideration on March 11, 2016. AR 190-204, 224-28. An Administrative Law Judge (“ALJ”)

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held a hearing on February 27, 2018 and issued an unfavorable decision on May 14, 2018. AR 13-

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27. The Appeals Council denied Plaintiff’s request for review on December 17, 2018. AR 1-6.

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On April 1, 2019, Plaintiff sought review of the Agency’s decision with the United States

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District Court for the Central District of California pursuant to 42 U.S.C. § 405(g). AR 1158. On

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October 8, 2019, pursuant to a stipulation between the parties, Magistrate Judge Gail Standish

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remanded the case for further proceedings. AR 1169-74. Judge Standish ordered the Appeals

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Council to instruct the ALJ to reassess and explain the weight given to the medical opinion

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evidence, reevaluate Plaintiff’s residual functional capacity, re-evaluate whether Plaintiff can
return to past relevant work or perform other work in the national economy, and take any further

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United States District Court
Northern District of California

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action needed to complete the administrative records. AR 1172-73.

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The Appeals Council added further detail to the remand order and directed the ALJ to

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address the opinion of consultative examiner Kara Cross Ph.D., that Plaintiff would have moderate

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limitations in performing simple one-or-two step job instructions over an eight hour a day and 40-

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hour a workweek without decompensating. AR 1177. The Appeals Council also directed the ALJ

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to reassess whether Plaintiff participated in substantial gainful activity in her past job as a Home

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Healthcare Adviser. AR 1178. On November 24, 2020, a new ALJ held a new hearing. AR

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1050-1125. On November 30, 2020, the ALJ issued a partially favorable decision finding Plaintiff

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disabled as of January 1, 2018, but not before. AR 1054-71.

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On February 1, 2021, Plaintiff filed the present complaint pursuant to 42 U.S.C. § 405(g).

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III.

ISSUES FOR REVIEW

Plaintiff raises four issues on appeal: (1) the ALJ’s physical residual functional capacity

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assessment is without the support of substantial evidence; (2) the ALJ erred in rejecting the

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opinions of treating and examining doctors; (3) the ALJ failed to satisfy her burden at step five of

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the analysis to prove that she can perform a significant number of other jobs in the national

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economy; and (4) the ALJ failed to provide clear and convincing reasons to reject her subjective

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limitations.

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IV.

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STANDARD OF REVIEW

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42 U.S.C. § 405(g) provides this Court’s authority to review the Commissioner’s decision

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to deny disability benefits, but “a federal court’s review of Social Security determinations is quite

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limited.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “An ALJ’s disability

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determination should be upheld unless it contains legal error or is not supported by substantial

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evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citations omitted).

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Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.” Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154 (2019)

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(simplified). It means “more than a mere scintilla, but less than a preponderance” of the evidence.

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Garrison, 759 F.3d at 1009 (citation omitted).
The Court “must consider the entire record as a whole, weighing both the evidence that

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Northern District of California

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supports and the evidence that detracts from the Commissioner’s conclusion, and may not affirm

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simply by isolating a specific quantum of supporting evidence.” Id. (citation omitted). “The ALJ

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is responsible for determining credibility, resolving conflicts in medical testimony, and for

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resolving ambiguities.” Id. at 1010 (citation omitted). If “the evidence can reasonably support

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either affirming or reversing a decision,” the Court may not substitute its own judgment for that of

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the ALJ.” Id. (citation omitted).
Even if the ALJ commits legal error, the ALJ’s decision will be upheld if the error is

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harmless. Molina v. Astrue, 674 F.3d 1104, 1111, 1115 (9th Cir. 2012). “[A]n error is harmless

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so long as there remains substantial evidence supporting the ALJ’s decision and the error does not

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negate the validity of the ALJ’s ultimate conclusion.” Id. at 1115 (simplified). But “[a] reviewing

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court may not make independent findings based on the evidence before the ALJ to conclude that

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the ALJ’s error was harmless.” Brown-Hunter, 806 F.3d at 492. The Court is “constrained to

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review the reasons the ALJ asserts.” Id. (simplified).

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V.
A.

DISCUSSION

Framework for Determining Whether a Claimant Is Disabled
A claimant is considered “disabled” under the Social Security Act if two requirements are

met. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the
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claimant must demonstrate “an inability to engage in any substantial gainful activity by reason of

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any medically determinable physical or mental impairment which can be expected to result in

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death or which has lasted or can be expected to last for a continuous period of not less than 12

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months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be severe

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enough that the claimant is unable to perform previous work and cannot, based on age, education,

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and work experience “engage in any other kind of substantial gainful work which exists in the

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national economy.” Id. § 423(d)(2)(A).

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The regulations promulgated by the Commissioner of Social Security provide for a fivestep sequential analysis to determine whether a Social Security claimant is disabled. 20 C.F.R. §
404.1520. The claimant bears the burden of proof at steps one through four. Ford v. Saul, 950

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United States District Court
Northern District of California

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F.3d 1141, 1148 (9th Cir. 2020) (citation omitted).

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At step one, the ALJ must determine if the claimant is presently engaged in a “substantial

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gainful activity,” 20 C.F.R. § 404.1520(a)(4)(i), defined as “work done for pay or profit that

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involves significant mental or physical activities.” Ford, 950 F.3d at 1148 (internal quotations and

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citation omitted). Here, the ALJ determined Plaintiff had not performed substantial gainful

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activity since April 1, 2012. AR 1058.

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At step two, the ALJ decides whether the claimant’s impairment or combination of

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impairments is “severe,” 20 C.F.R. § 404.1520(a)(4)(ii), “meaning that it significantly limits the

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claimant’s ‘physical or mental ability to do basic work activities.’” Ford, 950 F.3d at 1148

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(quoting 20 C.F.R. § 404.1522(a)). If no severe impairment is found, the claimant is not disabled.

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20 C.F.R. § 404.1520(c). Here, the ALJ determined Plaintiff had the following severe

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impairments: fibromyalgia; chronic fatigue syndrome; major depressive disorder; panic disorder

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without agoraphobia; bipolar disorder; posttraumatic stress disorder; psychotic disorder not

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otherwise specified; somatization disorder; and personality disorder. AR 1058.

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At step three, the ALJ evaluates whether the claimant has an impairment or combination of

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impairments that meets or equals an impairment in the “Listing of Impairments” (referred to as the

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“listings”). See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1. The listings

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describe impairments that are considered “to be severe enough to prevent an individual from doing
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any gainful activity.” Id. § 404.1525(a). Each impairment is described in terms of “the objective

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medical and other findings needed to satisfy the criteria of that listing.” Id. § 404.1525(c)(3).

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“For a claimant to show that his impairment matches a listing, it must meet all of the specified

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medical criteria. An impairment that manifests only some of those criteria, no matter how

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severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (footnote omitted). If a

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claimant’s impairment either meets the listed criteria for the diagnosis or is medically equivalent

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to the criteria of the diagnosis, he is conclusively presumed to be disabled, without considering

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age, education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined Plaintiff

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did not have an impairment or combination of impairments that meets the listings. AR 1059.

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If the claimant does not meet or equal a listing, the ALJ proceeds to step four and assesses

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Northern District of California

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the claimant’s residual functional capacity (“RFC”), defined as the most the claimant can still do

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despite their imitations (20 C.F.R. § 404.1545(a)(1)), and determines whether they are able to

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perform past relevant work, defined as “work that [the claimant has] done within the past 15 years,

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that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do

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it.” 20 C.F.R. § 404.1560(b)(1). If the ALJ determines, based on the RFC, that the claimant can

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perform past relevant work, the claimant is not disabled. Id. § 404.1520(f). Here, the ALJ

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determined that, prior to January 1, 2018, Plaintiff had the RFC

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to perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c) consisting of the ability to lift, carry, push or pull up to 50
pounds occasionally and 25 pounds frequently; stand and walk 6 out
of 8 hours a day; sit 6 out of 8 hours a day; frequently climb ramps,
stairs, stoop, kneel, crouch, and crawl; frequently handle and finger
with the upper extremities; tolerate no more than occasional exposure
to gases, fumes, odors, dusts, poor ventilation, or chemicals; do work
that excludes climbing ladders, ropes, and scaffolds, more than
occasional exposure to extreme cold and vibrations, exposure to
dangerous moving machinery or unprotected heights. The claimant
can perform simple work tasks involving occasional and superficial
contact with coworkers and public, and do no assembly line or
production paced work.
AR 1061. The ALJ determined that, beginning January 1, 2018, Plaintiff has the RFC
to perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c) consisting of the ability to lift, carry, push or pull up to 50
pounds occasionally and 25 pounds frequently; stand and walk 6 out
of 8 hours a day; sit 6 out of 8 hours a day; frequently climb ramps,
stairs, stoop, kneel, crouch, and crawl; frequently handle and finger
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with the upper extremities; tolerate no more than occasional exposure
to gases, fumes, odors, dusts, poor ventilation, or chemicals; do work
that excludes climbing ladders, ropes, and scaffolds, more than
occasional exposure to extreme cold and vibrations, exposure to
dangerous moving machinery or unprotected heights. The claimant
can perform simple work tasks involving occasional and superficial
contact with coworkers and public, do no assembly line or production
paced work, and would be off task for 20% of the workday.

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AR 1066. Based on these RFCs, the ALJ determined Plaintiff could not perform past relevant

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work. AR 1068.

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At step five, the burden shifts to the agency to prove that “‘the claimant can perform a

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significant number of other jobs in the national economy.’” Ford, 950 F.3d at 1149 (quoting

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Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002)). To meet this burden, the ALJ may rely
on the Medical-Vocational Guidelines (commonly known as “the grids”), 20 C.F.R. Pt. 404 Subpt.

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United States District Court
Northern District of California

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P, App. 2,3 or on the testimony of a vocational expert. Ford, 950 F.3d at 1149 (citation omitted).

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“[A] vocational expert or specialist may offer expert opinion testimony in response to a

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hypothetical question about whether a person with the physical and mental limitations imposed by

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the claimant’s medical impairment(s) can meet the demands of the claimant’s previous work,

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either as the claimant actually performed it or as generally performed in the national economy.”

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20 C.F.R. § 404.1560(b)(2). An ALJ may also use other resources such as the Dictionary of

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Occupational Titles (“DOT”).4 Id. Here, the ALJ determined that, prior to January 1, 2018, there

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were jobs that existed in significant numbers in the national economy that Plaintiff could have

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performed, including Grocery Store Bagger, Automobile Detailer, and Hospital Food Service

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The grids “present, in table form, a short-hand method for determining the availability and
numbers of suitable jobs for a claimant.” Lounsburry v. Barnhart, 468 F.3d 1111, 1114-15 (9th
Cir. 2006) (citing Tackett, 180 F.3d at 1101). They consist of three tables, for sedentary work,
light work, and medium work, and a claimant’s place on the applicable table depends on a matrix
of four factors: a claimant’s age, education, previous work experience, and physical ability. Id.
“For each combination of these factors, [the grids] direct a finding of either ‘disabled’ or ‘not
disabled’ based on the number of jobs in the national economy in that category of physicalexertional requirements.” Id.
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The Dictionary of Occupational Titles by the United States Department of Labor, Employment &
Training Administration, may be relied upon “in evaluating whether the claimant is able to
perform work in the national economy.” Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990).
The DOT classifies jobs by their exertional and skill requirements and may be a primary source of
information for the ALJ or Commissioner. 20 C.F.R. § 404.1566(d)(1). The “best source for how
a job is generally performed is usually the Dictionary of Occupational Titles.” Pinto v.
Massanari, 249 F.3d 840, 846 (9th Cir. 2001).
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Worker. AR 1069-70. However, beginning on January 1, 2018, the ALJ determined there are no

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jobs that exist in significant numbers in the national economy that Plaintiff can perform. AR

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1070.

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B.

Physical Residual Functional Capacity
As detailed above, the ALJ determined Plaintiff could perform a range of simple, medium

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exertional work prior to 2018. AR 1066. However, the ALJ found Plaintiff’s “severe”5 mental

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impairments worsened as of January 1, 2018, causing her to become 20% off task (which was

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deemed to be disabling) when combined with her prior assessed limitations, including her ability

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to “perform simple work tasks involving occasional and superficial contact with coworkers and

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public, and do no assembly line or production paced work.” AR 1066-68, 1070. The parties do

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United States District Court
Northern District of California

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not dispute the ALJ’s finding regarding Plaintiff’s status beginning on January 1, 2018. However,

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Plaintiff argues the ALJ’s pre-2018 physical RFC is not supported by substantial evidence. Pl.’s

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Mot. at 6.
RFC is the most a claimant can do despite her limitations. 20 C.F.R. § 404.1545(a)(1). It

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is assessed by considering all the relevant evidence in a claimant’s case record. Id.; see also

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Richardson v. Perales, 402 U.S. 389, 401 (1971). When a case is before an ALJ, it is the ALJ’s

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responsibility to assess a claimant’s RFC. 20 C.F.R. § 404.1546(c); see also Vertigan v. Halter,

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260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it is the responsibility of the ALJ, not the

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claimant’s physician, to determine residual functional capacity.”). “Generally, the more consistent

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an opinion is with the record as a whole, the more weight [the ALJ] will give to that opinion.” 20

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C.F.R. § 416.927(c)(4).

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Plaintiff raises several arguments regarding the RFC assessment.

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1.

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Plaintiff first notes the ALJ cites exhibit 1F/2-4, which is a consultative examination that

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Dr. Girgis

took place on August 19, 2014, and was from a previous benefits application filed on May 12,

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“Severe” within the meaning of the regulations is indicative of a condition that causes more than
a slight abnormality and has some impact on one’s ability to work. See 20 C.F.R. § 404.1522
(defining a “nonsevere” condition); SSR 85-28, 1985 WL 56856; SSR 16-3p, 2016 WL 1119029.
This is a “de minimis screening device to dispose of groundless claims.” Smolen, 80 F.3d at 1290.
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2014. AR 143-66, 561. Plaintiff notes the consultative examiner, Bahaa Girgis, M.D., considered

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only knee pain and vertigo, without evaluating her fibromyalgia, multiple chemical sensitivity

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diagnosis, chronic fatigue syndrome, and osteoporosis. AR 560. However, the ALJ did not

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simply adopt Dr. Girgis’s findings as the RFC but instead considered Plaintiff’s objective medical

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findings, treatment course, and reported daily activities. AR 1066. The Court also notes that Dr.

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Girgis conducted Plaintiff’s physical examination in 2014, two years after the alleged disability

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onset date, and opined that she had the ability to perform a range of work at the medium exertional

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level. AR 556-61; see 20 C.F.R. § 404.1567 (defining the physical requirements of the various

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exertional levels). Further, while this opinion supported the ALJ’s RFC findings, the ALJ

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assessed Plaintiff with greater limitations than those assessed by Dr. Girgis. AR 1063-64.

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United States District Court
Northern District of California

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Accordingly, the Court finds the ALJ did not err in considering Dr. Girgis’s opinion.

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2.

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Next, Plaintiff argues her multiple chemical sensitivity syndrome6 was neither

Multiple Chemical Sensitivity Syndrome

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appropriately assessed by the ALJ nor properly accounted for in her physical RFC. Pl.’s Mot. at

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7-9. Plaintiff notes the ALJ found she could have occasional exposure to gases, fumes, odors,

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chemicals, poor ventilation and dust, AR 1066, but did not cite to a medical opinion to support this

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finding. In contrast, she argues the record shows she “has trouble with all exposure to fumes,

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dusts, perfumes, household cleaners, etc., due to multiple chemical sensitive syndrome,” and “that

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even a moderate exposure to dust and fumes could trigger a chemical sensitivity reaction from

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[Plaintiff] where she would have to leave the worksite.” Pl.’s Mot. at 7-8.
In determining a claimant’s RFC, an ALJ must account for medical opinions where a

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claimant has been diagnosed with multiple chemical sensitivity. See Bridges v. Colvin, 2016 WL

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7167870, at *5 (C.D. Cal. Dec. 8, 2016); Joost v. Colvin, 2016 WL 3865924, at *3-4 (W.D. Wash.

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July 12, 2016). However, the record contains no objective evidence from an acceptable medical

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Multiple chemical sensitivity is “a symptom array of variable presentation attributed to recurrent
exposure to known environmental chemicals at dosages generally below levels established as
harmful; complaints involve multiple organ systems.” Stedmans Medical Dictionary, 809520
multiple chemical sensitivity.
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source establishing that Plaintiff suffers from multiple chemical sensitivity as a medically

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determinable impairment. In support of her argument, Plaintiff cites to progress notes from Sheri

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Wen Hsu, M.D., in which Plaintiff reported chemical sensitivity that started in the 1990s and

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sensitivity to environmental antigens and household chemicals. AR 619, 625. However, these are

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subjective complaints and do not constitute objective medical findings. Under the regulations,

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Plaintiff’s “statement of symptoms, a diagnosis, or a medical opinion,” alone, may not be used “to

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establish the existence of an impairment(s).” 20 C.F.R. § 404.1521 (“[A] physical or mental

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impairment must be established by objective medical evidence from an acceptable medical

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source”). Dr. Hsu’s records note Plaintiff’s hand and finger issues due to osteoarthritis, but
otherwise document completely normal musculoskeletal and neurological examination findings.

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AR 621, 626. Dr. Hsu also noted that Plaintiff’s “pain is also related to an underlying mood

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disorder” and suggested that she “would benefit from seeing mental health” care. AR 627.

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Plaintiff also cites to a progress note dated July 10, 2017, which is mostly illegible but seems to

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indicate she suffers from allergies to chemicals, perfumes, and cleaning supplies.7 AR 863. None

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of these citations establish multiple chemical sensitivity as a medically determinable impairment.

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Further, contrary to Plaintiff’s contentions, the ALJ did not simply ignore her allegations; rather,

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the ALJ found her “allergies” were “non-severe because the objective medical evidence

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establishes only a slight abnormality or a combination of slight abnormalities that would have no

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more than minimal limitation on the ability to work for 12 consecutive months relative to this

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decision.” AR 1058.
In reviewing the record, the Court finds it offers broad support for the ALJ’s finding.

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Plaintiff reported her allergy issues began in 1997, at which time she had a “very confined life,”

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but after receiving successful treatment she could “tolerate light perfumes and move[] around

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without wearing respirator and gloves.” AR 625, 990. In October 2014, Plaintiff informed her

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provider that she remained “allergic to all chemicals” and she complained of a reaction to her

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Plaintiff cites AR 863 without explaining its contents. Further, although the Court directed the
parties to file statements that set forth each fact from the AR on which they rely in support of their
motions, ECF No. 14, Plaintiff does not include AR 863 in her separate statement, ECF No. 23.
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tetanus vaccination. AR 598. However, during 20 minutes of observation following the injection,

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Plaintiff showed “no visible signs of reaction” and her oxygen intake (SpO2) remained at 98% on

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room air. Id. Plaintiff then announced that she was “good to go,” and was feeling “fine” without

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any “reactivity.” Id. After Plaintiff was referred to specialists for allergy testing and behavioral

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health (AR 595, 589), March 2015 test results revealed no more than a medium reaction to the

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allergens assessed. AR 573-79. In December 2017 Plaintiff appeared at her provider with

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complaints of sneezing and a runny nose, after sharing a sleeping space with a cat at her friend’s

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house. AR 990. Although she reported having nasal congestion, postnasal drip, and sinus

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pressure during the past few years, her “history of multiple chemical, food and drug allergies” was

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deemed “better now.” AR 990-91. Her current allergic conjunctivitis was “not significant enough

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Northern District of California

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at this time to warrant treatment,” but allergy testing was scheduled. AR 991. Plaintiff’s “skin

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test was negative for aeroallergens” (airborne substances or inhalants). AR 987-89. “While

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subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by

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objective medical evidence, the medical evidence is still a relevant factor in determining the

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severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857

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(9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2).

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In addition to the objective medical evidence, Plaintiff’s reported activities provided

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further support for finding her allergies “nonsevere.” For example, Plaintiff alleged an inability to

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be around almost all household cleaners, such as Windex or Bleach (AR 53-54; Pl.’s Mot. at 8),

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yet she testified that she was responsible for keeping the laundry room and property tidy,

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including dusting off the patio furniture, at the apartments she managed (AR 50-51, 481), and that

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she was a housekeeper in exchange for rooming for more than a year (AR 45, 69-72). The record

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also reflects that Plaintiff performed housekeeper work for a small resort with five guest rooms

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from August 2014 to December 2015, (AR 409, 439, 444, 481, 1376) and acted as an apartment

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manager with some cleaning responsibilities from December 22, 2015 through July 2019 (AR 48-

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51, 1376, 1099, 1102). An ALJ may consider “whether the claimant engages in daily activities

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inconsistent with the alleged symptoms.” Molina, 674 F.3d at 1113.

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In sum, while Plaintiff relies on her subjective reports to her providers to argue she could
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not perform any work because it might trigger extreme allergies, the objective medical evidence

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and other evidence of record do not support Plaintiff’s alleged extreme symptoms. See, e.g., AR

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1058 (noting “examinations show[ed] unremarkable findings pertaining to relevant body systems

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over the longitudinal record”)). The ALJ’s RFC included limitations to account for Plaintiff’s

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allergies (AR 1061, 1066), and the vocational expert testified that such limitations would not

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preclude performance of the jobs of Grocery Store Bagger, Automobile Detailer, and Hospital

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Food Service Worker (AR 1069, 1114-17, 1119). Plaintiff’s alternative interpretation of the

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record is not sufficient to warrant remand. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

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2005) (“Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s

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conclusion that must be upheld.”).

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Northern District of California

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3.

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Plaintiff next argues the ALJ erred because her bone density reports from 2016 and 2017

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were not reviewed by any of the state agency doctors. Pl.’s Mot. at 9 (citing AR 754, 855). She

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maintains the ALJ “either evaluated [her] bone density study himself and failed to discuss it, or he

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just ignored it.” Id. In support of her argument, Plaintiff cites Laura G. v. Berryhill, 357 F. Supp.

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3d 1023 (Cal. C.D. 2019). In that case, the court remanded for further proceedings because the

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ALJ assessed the plaintiff’s MRIs and bone density evidence herself, without any state agency

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doctor having evaluated the plaintiff’s osteoporosis diagnosis. Id. at *1032. The court noted the

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stage agency physicians reviewed the plaintiff’s medical records in March and June 2014, but

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subsequent lumbar and cervical-spine MRIs in December 2014 showed degenerative changes and

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cord flattening. Id. at *1031-32. The court also noted the state agency doctors weren’t aware of

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the plaintiff’s osteoporosis, which wasn't diagnosed until 2015. Id. at *1032. The court found the

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ALJ erred because she instead evaluated the MRIs and bone-density evidence herself, determining

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that the MRIs showed only “slight abnormality that would have no more than a minimal effect on

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[Plaintiff’s] ability to work” and that the osteoporosis was nonsevere.” Id. The court held that

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“[m]aking these assessments without support from any physician was improper.” Id. (citations

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omitted).

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Bone Density

Here, the ALJ found Plaintiff’s osteoporosis non-severe (AR 1058), but there is no
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indication the ALJ evaluated any bone density evidence herself. Instead, the record shows these

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studies were considered by Plaintiff’s providers. In March 2016 Hooman Dehghan, M.D.

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reviewed Plaintiff’s bone density test results and noted her status as post-menopausal, that she had

4

no recent fractures, and that she regularly took dietary supplements. AR 1000. Plaintiff was

5

started on medication (AR 1001), which she continued to be prescribed through at least January

6

2018 (AR 1022). In June 2019, Plaintiff’s osteoporosis was noted as “stable” on her current

7

medication regimen. AR 1660. Unlike the record in Laura G., the record in this case allowed the

8

ALJ to determine the nature and severity of Plaintiff’s impairments based on objective medical

9

evidence, without rendering her own medical opinion. Further, although the ALJ did not
specifically address the 2016 and 2017 bone density reports, there is no requirement that an ALJ

11

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Northern District of California

10

discuss every piece of evidence considered. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,

12

1012 (9th Cir. 2003) ([I]n interpreting the evidence and developing the record, the ALJ does not

13

need to “discuss every piece of evidence.”) (citations omitted).

14

4.

15

Next, Plaintiff argues the ALJ’s RFC was improper because of his reliance on normal

Fibromyalgia

16

clinical physical examination signs, despite her diagnosed fibromyalgia. Pl.’s Mot. at 9. In

17

discussing Plaintiff’s fibromyalgia, the ALJ determined it was medically determinable as a severe

18

impairment, but the severity of her fibromyalgia did not preclude functioning beyond the

19

restrictions stated in the RFC. AR 1059. The ALJ noted the record documented mild to moderate

20

discomfort with intermittent pain worsening with cold temperature, activity, and stress, that the

21

pain improved with rest and medications, and that there was no evidence of major joint swelling.

22

Id.

23

“Fibromyalgia is a rheumatic disease that causes inflammation of the fibrous connective

24

tissue components of muscles, tendons, ligaments, and other tissue.” Revels v. Berryhill, 874 F.3d

25

648, 656 (9th Cir. 2017) (quotation marks and citation omitted). “The Agency and the courts have

26

determined that fibromyalgia is a real disorder that can impact a person’s ability to work.” Slaff v.

27

Colvin, 2015 WL 404226, at *2 (C.D. Cal. Jan. 28, 2015) (citing Benecke v. Barnhart, 379 F.3d

28

587 (9th Cir. 2004)); SSR 12-2, 2012 WL 3104869 (July 25, 2012) (“[Fibromyalgia is a
12

[medically determinable impairment] when it is established by appropriate medical evidence.

2

[Fibromyalgia] can be the basis for a finding of disability.”). SSR 12-2p “provides guidance on

3

how we develop evidence to establish that a person has a medically determinable impairment

4

(MDI) of fibromyalgia (FM), and how we evaluate FM in disability claims and continuing

5

disability reviews under titles II and XVI of the Social Security Act (Act).” SSR 12-2p at *1. A

6

claimant must provide evidence that a licensed physician reviewed her medical history, conducted

7

a physical examination, and made a fibromyalgia diagnosis. Id. at *2. The physician must also

8

provide evidence which satisfies one of two alternate diagnostic criteria: the 1990 American

9

College of Rheumatology Criteria for the Classification of Fibromyalgia or the 2010 American

10

College of Rheumatology Preliminary Diagnostic Criteria. Id. at *2-3. Under the 1990 criteria,

11

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Northern District of California

1

the evidence must show: (1) “a history of widespread pain . . . that has persisted . . . for at least 3

12

months;” (2) at least 11 positive tender points, found both bilaterally and above and below the

13

waist; and (3) evidence that other disorders which could cause the symptoms were excluded. Id. at

14

*3. Under the 2010 criteria, the evidence must show: (1) a history of widespread pain; (2)

15

repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions;

16

and (3) evidence that other disorders which could cause the symptoms were excluded. Id. Finally,

17

the physician’s diagnosis must not be “inconsistent with the other evidence in the person’s case

18

record.” Id. at *2.

19

Plaintiff relies on Benecke in asserting that fibromyalgia must be “evaluated ‘entirely on

20

the basis of patients’ reports of pain and other symptoms.’” Pl.’s Mot. at 9 (quoting Benecke, 379

21

F.3d at 590). However, after Benecke was decided in 2004, the Agency published SSR 12-2p in

22

2012 to provide guidance regarding the evidence needed to establish a medically determinable

23

impairment of fibromyalgia. 2012 WL 3104869, at *2. As part of this, a physician must conduct

24

a physical examination and provide evidence that satisfies either the 1990 criteria or the 2010

25

criteria. Here, the ALJ explicitly considered both the 1990 and 2010 criteria. AR 1059.

26

The ALJ found the evidence of record showed Plaintiff had “significant problems with

27

fatigue and body tenderness and pain for a number of years, which continued as of the established

28

onset date” AR 1066. The ALJ noted Plaintiff’s fibromyalgia tender points ranged between 11
13

1

out of 18 points to 16 out of 18 points during physical examinations throughout the record. AR

2

1062 (citing AR 743, 752). The ALJ found Plaintiff’s fibromyalgia was a “severe” medically

3

determinable impairment. AR 1059. However, the ALJ emphasized that the record did not

4

document evidence of major joint swelling and that Plaintiff persistently described her symptoms

5

as only “mild to moderate discomfort.” AR 1059 (citing AR 741); see also, e.g., AR 621, 626,

6

897, 926, 994, 1000, 1006, 1012. Before July 2015, Plaintiff did not engage in any form of formal

7

treatment for her fibromyalgia symptoms (AR 625, 741), despite her diagnosis with the condition

8

in 2000 (AR 1003).
Further, as the ALJ observed, Plaintiff’s symptoms were well controlled once she was

10

started on medication. AR 1062 (citing AR 741 (noting a 70% improvement in fibromyalgia

11

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9

symptoms while on Gabapentin)); see also AR 672, 744, 780. Impairments that can be controlled

12

effectively with medication are not disabling. Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d

13

1001, 1006 (9th Cir. 2006). Indeed, Plaintiff’s January 2018 rheumatology evaluation provided

14

persuasive evidence that her condition was under control. It indicated that Plaintiff continued to

15

be doing well after her established disability onset date—she had no significant pain, a normal

16

physical exam, and good response to her medications, and stable management of her fibromyalgia

17

symptoms on her prescribed protocol. AR 1066 (citing AR 1020-22). As the ALJ observed,

18

Plaintiff’s examinations throughout the record were “typically normal,” with documented normal

19

range of motion, full (5/5) strength in all her extremities, normal muscle bulk and tone, intact

20

sensation, no joint swelling, and a normal gait on all her examinations. AR 1066 (citing, e.g., AR

21

1515, 1548, 1559, 1570); AR 1062, 1064 (citing, e.g., AR 621, 626, 743, 897-98, 922-23, 928,

22

994-95, 1021).

23

In sum, the Court finds the ALJ reasonably assessed Plaintiff’s RFC, taking into account

24

all the evidence of record, including her subjective allegations, as well as the objective medical

25

and other evidence of record related to her fibromyalgia. The Court is aware of no authority that

26

requires an ALJ to give dispositive weight to Plaintiff’s symptom allegations simply because they

27

were associated with fibromyalgia. Plaintiff cites Revels, which recognized that “medical

28

evidence must be construed in light of fibromyalgia’s unique symptoms and diagnostic methods,
14

1

as described in SSR 12-2p and [prior Ninth Circuit precedent].” 874 F.3d at 662. But the Revels

2

court did not simply accept the claimant’s alleged symptoms; rather, the court analyzed the

3

various reasons provided for discounting particular pieces of evidence and considered medical

4

evidence of claimant’s fibromyalgia in conjunction with the symptom allegations. Id. at 662-63.

5

Here, the longitudinal evidence of record, including objective medical evidence (see, e.g., AR

6

150-51, 174-75, 197-98, 556-61, 1570), Plaintiff’s ability to work as a housekeeper and apartment

7

manager (AR 481, 1376), and her positive response to treatment protocols (AR 991, 1020-22,

8

1660) supported the ALJ’s physical RFC assessment. This is “such relevant evidence as a

9

reasonable mind might accept as adequate to support [the] conclusion.” Biestek, 139 S. Ct. at
1154. While Plaintiff offers an alternative interpretation of the record, it is based largely on her

11

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10

subjective complaints, which, as discussed below, the ALJ properly discounted. Therefore, under

12

the deferential standard of review, the Court must affirm.

13

C.

Medical Opinions

14

Upon remand, the Appeals Council directed the ALJ to, among other things, evaluate the

15

treating and non-treating source opinions and explain the weight given to such opinion evidence.

16

AR 1054, 1172-73, 1177-80. In response, the ALJ assessed the multiple conflicting mental

17

functional opinions, which had widely divergent limitations assigned to Plaintiff—from findings

18

of no mental limitations (AR 1060, 1065 (citing AR 162-65, 174-75, 198-200)) and “moderate”

19

limitations (AR 1060-61, 1064 (citing AR 564-70, 663-69)), to opinions of Plaintiff having no

20

useful ability to perform mental work activities (AR 1067 (citing AR 648, 660-61, 654-55)). In

21

evaluating these opinions, the ALJ did not adopt a particular opinion but instead used these

22

opinions to inform her mental RFC findings. AR 1061, 1066. Plaintiff argues the ALJ erred in

23

her evaluation of these opinions.

24

In social security disability cases, “[t]he ALJ must consider all medical opinion evidence.”

25

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). In this circuit, courts distinguish

26

among the opinions of three types of physicians: (1) treating physicians who have an established

27

relationship with the claimant; (2) examining physicians who see the claimant but do not treat

28
15

1

him; and (3) non-examining physicians who neither examine nor treat the claimant.8 Lester v.

2

Chater, 81 F.3d 821, 830 (9th Cir. 1995). The opinion of a treating physician is entitled to more

3

weight than the opinion of an examining physician, and more weight is given to the opinion of an

4

examining physician than a non-examining physician. See Ghanim v. Colvin, 763 F.3d 1154,

5

1160 (9th Cir. 2014). If a treating physician’s opinion is “well-supported by medically acceptable

6

clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial

7

evidence” in the record, it must be given controlling weight. 20 C.F.R. § 404.1527(c)(2). The

8

ALJ must provide clear and convincing reasons, supported by substantial evidence, for rejecting

9

the uncontradicted opinion of a treating physician. See Ghanim, 763 F.3d at 1160. Where
contradicted, the opinion of a treating physician may only be rejected for “specific and legitimate

11

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Northern District of California

10

reasons that are supported by substantial evidence.” Id.
Under the “specific and legitimate reasons” standard, the ALJ is required to set out “a

12
13

detailed and thorough summary of the facts and conflicting clinical evidence, stating his

14

interpretation thereof, and making findings.” Thomas, 278 F.3d at 957. Conclusory statements by

15

the ALJ are insufficient; he “must set forth [his or] her own interpretations and explain why they,

16

rather than the doctors’, are correct.” Id. An ALJ errs if he “does not explicitly reject a medical

17

opinion or set forth specific, legitimate reasons for crediting one medical opinion over another[.]”

18

Garrison, 759 F.3d at 1012–13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)).

19

1.

20

On August 22, 2014, Kara Cross, Ph.D. performed a psychological consultative

Consultative Examiner Kara Cross, Ph.D.

21

examination. AR 564-70. At her examination, Plaintiff was alert and oriented, had coherent and

22

organized thoughts, thought content was relevant and not delusional, had appropriate affect,

23

normal and articulate speech, adequate memory, adequate fund of knowledge, adequate

24

concentration, and normal judgment, reasoning, and insight. AR 567-68. Dr. Cross described

25

Plaintiff as “clean and casually groomed,” with the ability to volunteer information spontaneously,

26
27
28

For benefits applications filed after March 27, 2017, the Social Security Administration’s
regulations and several Social Security Rulings regarding the evaluation of medical evidence have
been amended. As Plaintiff filed her application in 2015, the prior rules govern the Court’s
analysis here.
16
8

1

poor eye contact, adequate rapport and attention, and without psychomotor agitations or

2

retardation, throughout the examination. AR 567. Plaintiff was “open, cooperative and friendly.”

3

Id. Dr. Cross opined that Plaintiff had a “moderate” ability to relate to co-workers and the public

4

in an appropriate manner, and no other mental functional limitation. AR 570. She assessed

5

Plaintiff with a GAF9 rating of 60, indicative of “moderate” symptoms. AR 569.
On November 29, 2015, Plaintiff attended another consultative examination with Dr.

6

Cross. AR 663-69. She was noted as alert and oriented, having relevant and not delusional

8

thought content, normal and articulate speech, adequate memory, adequate fund of knowledge,

9

adequate concentration, and normal judgment, reasoning, and insight. AR 667. She was “neatly

10

and casually groomed,” respectful and open, with adequate eye contact. AR 666. Plaintiff was

11

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Northern District of California

7

also described as being a “somewhat” adequate and reliable historian (AR 663) and appearing

12

“somewhat genuine and truthful,” with “evidence of exaggeration” and “somewhat valid”

13

responses (AR 666). Plaintiff was further noted as slow to process thoughts due to depression, but

14

without tangentiality or loosening of associations. Id.
Plaintiff reported being in mental health treatment, and that her medications were helping.

15
16

AR 664. However, Dr. Cross noted that “[n]o documents were available to review” and her

17

assessment was made based entirely on Plaintiff examination and her subjective statements. AR

18

663, 665-66. Dr. Cross opined that Plaintiff had no mental functional limitations while working

19

part-time (AR 668-69), which was consistent with Plaintiff’s report that she had been successfully

20

working on a part-time basis during the 12 months preceding the examination (AR 665; see also

21

AR 409, 481), and with Dr. Cross’s assessment of a 63 GAF score (AR 668)—indicative of no

22

more than “mild” symptoms. Dr. Cross also opined that Plaintiff would have moderate difficulty

23

carry out simple one or two-step job instructions, performing detailed and complex tasks, and

24
25
26
27
28

A Global Assessment of Functioning (“GAF”) score is a numerical summary of a clinician’s
judgment of an individual’s psychological, social, and occupational functioning on a hypothetical
continuum of mental health on a scale of one hundred. See Diagnostic and Statistical Manual of
Mental Disorders, 32-34 (4th ed. text rev. 2000). A GAF score of 51-60 represents moderate
symptoms or any moderate difficulty in social, occupational, or school functioning. A GAF score
of 61-70 represents some mild symptoms or some difficulty in social, occupational, or school
functioning.
17
9

1

maintaining regular attendance over the course of an 8-hour workday, during a 40-hour work

2

week, without emotionally decompensating. AR 668-69.
The ALJ accorded less weight to Dr. Cross’s earlier 2014 opinion in light of her later

4

examination finding greater limitations. AR 1064. As to Dr. Cross’s November 2015 opinion, the

5

ALJ found the assessment of no more than a “moderate” limitation in any area of functioning

6

supported by the doctor’s examination notes. AR 1064. The ALJ also found this assessment was

7

consistent with the objective medical evidence of record related to the period before January 1,

8

2018. AR 1064. Specifically, the ALJ observed that upon mental status or psychiatric

9

examination, Plaintiff typically was oriented, had normal speech, memory, attention, fund of

10

knowledge, fair judgment, normal associations, and reported no hallucinations, delusions, or

11

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Northern District of California

3

suicidal, or homicidal ideation. AR 1064 (citing, e.g., AR 621, 626, 640, 692-93, 703-04).

12

However, “[t]o the extent that Dr. Cross implied [Plaintiff] could not sustain a regular forty-hour

13

week or equivalent schedule,” the ALJ accorded this portion of the opinion “little weight.” Id.

14

The ALJ reasoned this portion of the opinion was not supported by the doctor’s examination

15

notes, did not state “the most” Plaintiff could do, and amounted to an opinion on an issue reserved

16

to the Commissioner. Id.

17

Plaintiff argues the ALJ failed to address Dr. Cross’s opinion that she had a moderate

18

limitation in the ability to understand, remember, carryout simple one or two step instructions over

19

an eight-hour period for full time work. Pl.’s Mot. at 12. However, as noted above, the ALJ

20

reasoned that this portion of the opinion was not supported by the doctor’s examination notes, did

21

not state “the most” Plaintiff could do, and amounted to an opinion on an issue reserved to the

22

Commissioner. AR 1064; see 20 C.F.R. §§ 404.1545 (describing a functional assessment as “the

23

most” an individual can still do despite limitations, rather than an assessment of what one is

24

incapable of doing); 404.1527(d) (A statement by a medical source that you are ‘disabled’ or

25

‘unable to work’ does not mean that we will determine that you are disabled.”). In weighing a

26

medical opinion, an ALJ need not necessarily agree with everything contained in that opinion and

27

can consider some portions less significant than others when evaluated against the other evidence

28

of record. Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989); Brown-Hunter, 806 F.3d at
18

1

492 (An ALJ’s decision need not be drafted with “ideal clarity,” but must, at a minimum, set forth

2

the ALJ’s reasoning “in a way that allows for meaningful review.”) (citing Treichler v. Comm’r of

3

Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)). As such, the Court finds the ALJ

4

appropriately addressed the limitations opined by Dr. Cross.
Plaintiff also argues that Dr. Cross’s November 2015 opinion stands for the proposition

5

that she was “not capable of dealing with the stress of full-time work without emotionally

7

decompensating.” Pl.’s Mot. at 12. This is a misstatement of the opinion, as Dr. Cross opined that

8

Plaintiff had no more than a “moderate” limitation in any area of functioning, which under the

9

regulations translates to a “fair” ability to function “independently, appropriately, effectively, and

10

on a sustained basis,” in a given area of mental functioning. 20 C.F.R., Part 404, Subpt. P, App. 1,

11

United States District Court
Northern District of California

6

section 12.00 (F)(2)(c). As the ALJ noted, Dr. Cross assessed Plaintiff with no “marked”

12

limitation, let alone “extreme” limitation as Plaintiff appears to suggest, in any area of mental

13

functioning. AR 1064.
As the ALJ’s analysis of Dr. Cross’s opinion is supported by the record, the Court must

14
15
16
17
18

affirm.
2.

Treating Providers Joan Cartwright, Ph.D., David Hersh, M.D., and Nurse
Practitioner Pam Grimes

On October 16, 2015, Joan Cartwright, Ph.D., opined that Plaintiff could not adequately

19

compete in the open job market, due to inconsistency of her overall functioning. AR 648. On

20

November 11, 2015, Dr. Cartwright completed a short form evaluation for mental disorders. AR

21

657. Dr. Cartwright performed a mental status examination, finding grooming fair but motor

22

activity agitated, noting rapid speech, and that Plaintiff was cooperative but could be evasive. Id.

23

Dr. Cartwright found Plaintiff oriented in all areas, but her concentration was slightly distracted,

24

she had difficulty with memory, and she had to constantly record her activities. AR 658.

25

Plaintiff’s mood was anxious, depressed, and fearful, she did not appear to have hallucinations,

26

and she had a tangential thought process, no delusions, and some suicidal ideations. AR 657-58.

27

Dr. Cartwright opined that Plaintiff had fair to poor ability to perform the mental requirements of

28

work. AR 660.
19

1

On November 13, 2015, Psychiatric Nurse Pam Grimes completed a short form evaluation

2

for mental disorders, which was reviewed by David Hersh, M.D. AR 651-55. Grimes noted

3

Plaintiff’s symptoms of hyperactivity, marginal grooming, rapid and pressured speech with

4

rumination, and tangential thinking. AR 651. She noted Plaintiff had obsessions with her present

5

issues and paranoid of agencies knowing her whereabouts. AR 652. Nurse Grimes also noted

6

Plaintiff could be extremely disorganized in her thoughts and executive functioning, and that she

7

is easily overwhelmed. AR 651. She noted Plaintiff was compliant with treatment and had shown

8

improvements, however, her residual symptoms may be permanent. AR 653. Nurse Grimes

9

opined that Plaintiff would be unable to function at an employment level and assessed Plaintiff

10

United States District Court
Northern District of California

11

with fair-poor mental limitations in all areas of mental functioning. AR 654
In considering these opinions, the ALJ noted the “the treatment sources do not opine as to

12

a date at which time such limitations were attained and a review of the treatment records do not

13

support the degree of limitation opined as of the date of the opinions, until the established onset

14

date.” AR 1067. However, the ALJ assigned their opinions “great weight” as of the established

15

onset date. Id.

16

Plaintiff argues the ALJ’s analysis was “disingenuous” because the ALJ noted the opinions

17

failed to “opine as to a date at which time such limitations were attained” by Plaintiff, yet in

18

making her decision, the ALJ considered the providers’ treatment notes from around the same

19

time period. Pl.’s Mot. at 15 (citing AR 1067). In light of Plaintiff’s April 2012 alleged disability

20

onset date (AR 314, 318), which pre-dated these opinions by more than two years, the ALJ’s

21

observations were relevant. The ALJ noted that at her October 2015 examination with Nurse

22

Grimes, Plaintiff was oriented; had normal speech, memory, attention, fund of knowledge, fair

23

judgment, normal associations; and reported no hallucinations, delusions, or suicidal, or homicidal

24

ideation. AR 1063 (citing AR 692-93). By December 2015, Nurse Grimes noted Plaintiff’s mood

25

had been “remarkably stabilized” on her medication and Plaintiff’s mental status examination was

26

“normal” in all respects. AR 1063 (citing AR 702-03); see also AR 699. Similarly, Dr.

27

Cartwright’s 2015 notes stated Plaintiff was not gravely disabled, and that she had made

28

“excellent progress,” but needed “additional sessions to consolidate progress and prevent any
20

1

backsliding.” AR 1067 (citing AR 683-84); see also AR 686-87). Plaintiff points to treatment

2

notes and GAF assessments made by a different provider in 2017 as support for these 2015

3

opinions. Pl.’s Mot. at 15-16. However, as the ALJ correctly noted, the contemporaneous

4

treatment notes, including Dr. Cross’s and Dr. Cartwright’s assessed GAF scores, were

5

inconsistent with the extreme limitations opined. See, e.g., AR 668. 692-93, 699, 702-03, 683-84,

6

1063, 1067. See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (ALJ properly rejected

7

treating physician’s opinion where “treatment notes provide[d] no basis for the functional

8

restrictions [physician] opined should be imposed on [claimant]”).
In sum, because the ALJ’s findings were reasonable and well supported, the Court must

9
affirm.

11

United States District Court
Northern District of California

10

D.

12
13

Subjective Limitations
Plaintiff next argues the ALJ failed to provide clear and convincing reasons to reject her

subjective limitations. Pl.’s Mot. at 19-20.

14

1.

15

“In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ

Legal Standard

16

must engage in a two-step analysis. ‘First, the ALJ must determine whether the claimant has

17

presented objective medical evidence of an underlying impairment which could reasonably be

18

expected to produce the pain or other symptoms alleged.’” Vasquez v. Astrue, 572 F.3d 586, 591

19

(9th Cir. 2009) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). And

20

second, “if the claimant meets the first test and there is no evidence of malingering, the ALJ can

21

only reject the claimant’s testimony about the severity of the symptoms if she gives ‘specific, clear

22

and convincing reasons’ for the rejection.” Vasquez, 572 F.3d at 591 (quoting Smolen v. Chater,

23

80 F.3d 1273, 1282 (9th Cir. 1996)). “At the same time, the ALJ is not required to believe every

24

allegation of [symptoms], or else disability benefits would be available for the asking, a result

25

plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina, 674 F.3d at 1112 (citation and internal

26

quotations omitted). Along the same lines, “an individual’s statements of symptoms alone are not

27

enough to establish the existence of a physical or mental impairment or disability.” SSR 16-3P,

28

2016 WL 1119029, at *2.
21

In determining whether an individual’s symptoms will reduce her capacities to perform

1
2

work-related activities or abilities to function, “the ALJ may consider inconsistencies either in the

3

claimant’s testimony or between the testimony and the claimant’s conduct; unexplained or

4

inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and

5

whether the claimant engages in daily activities inconsistent with the alleged symptoms.” Molina,

6

674 F.3d at 1112 (citations and internal quotation marks omitted). “[I]f an individual’s statements

7

about the intensity, persistence, and limiting effects of symptoms are inconsistent with the

8

objective medical evidence and the other evidence, [the ALJ] will determine that the individual’s

9

symptoms are less likely to reduce his or her capacities to perform work-related activities or
abilities to function independently, appropriately, and effectively in an age-appropriate manner.”

11

United States District Court
Northern District of California

10

SSR 16-3p, 2016 WL 1119029, at *7.

12

2.

13

The ALJ provided several reasons for finding Plaintiff’s allegations inconsistent with the

Analysis

14

record, including Plaintiff’s: (1) objective medical evidence, with mostly normal clinical signs; (2)

15

positive response to her generally conservative treatment history; and (3) extensive activities of

16

daily living. AR 1062-63.

17

a.

Medical Evidence

First, the ALJ found that Plaintiff’s symptom allegations, prior to January 1, 2018, were

18
19

inconsistent with the objective medical evidence. AR 1062-63; see 20 C.F.R. § 404.1502(f)

20

(defining objective medical evidence as “signs, laboratory findings, or both”). This was a

21

reasonable consideration in assessing the intensity, persistence, or functionally limiting effects

22

Plaintiff’s symptoms. See 20 C.F.R. § 404.1529(c)(2) (including objective medical evidence

23

among the considerations when assessing a claimant’s symptoms); SSR 16-3p, 2016 WL 1119029

24

(“[O]bjective evidence is a useful indicator” of symptom intensity and persistence). The ALJ

25

noted Plaintiff’s typically “unremarkable” physical and mental clinical signs AR 1062-63; see 20

26

C.F.R. § 404.1502(g).10 Upon physical examination, Plaintiff’s fibromyalgia tender points, when

27
28

“Signs means one or more anatomical, physiological, or psychological abnormalities that can be
observed, apart from your statements (symptoms). Signs must be shown by medically acceptable
22
10

1

measured, ranged between 11 out of 18 points and 16 out of 18 points, but Plaintiff persistently

2

retained her normal range of motion, full (“5/5”) strength in all her extremities, normal muscle

3

bulk and tone, intact sensation, no joint swelling, and the ability to ambulate unassisted with a

4

normal gait. AR 1062 (citing AR 621, 626, 743, 752, 898, 922, 928, 994-95, 1021); AR 1063

5

(citing AR 557-59). Similarly, upon mental status or psychiatric examination, Plaintiff’s mood

6

was intermittently sad, depressed, or anxious, but she was persistently oriented, with normal

7

speech, memory, attention, fund of knowledge, fair judgment, normal associations, and without

8

reported hallucinations, delusions, or suicidal, or homicidal ideation. AR 1063 (citing AR 621,

9

626, 640, 692-93, 702-03); AR 1063 (citing AR 567-68). Based on this objective medical
evidence, the ALJ reasonably found Plaintiff’s clinical signs inconsistent with her allegations of

11

United States District Court
Northern District of California

10

extreme and persistent symptoms causing her work-preclusive limitations. See Meanel v. Apfel,

12

172 F.3d 1111, 1114 (9th Cir. 1999) (reasoning the lack of muscular atrophy or any other physical

13

signs of inactivity is inconsistent with allegations of being a “totally incapacitated individual”);

14

Molina, 674 F.3d at 1113 (finding it appropriate for ALJ to rely on objective clinical findings,

15

including generally normal mental status examination findings, to find a claimant’s allegations of

16

disabling mental limitations unsupported).

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18

b.

Treatment History

Next, the ALJ considered Plaintiff’s treatment history. AR 1062-63; see 20 C.F.R. §§

19

404.1529(c)(3)(iv)-(v) (listing treatments among the factors considered in subjective symptom

20

analysis). The ALJ found “the longitudinal record reflect[ed] a conservative course of treatment,

21

which [did] not support the degree of intensity, persistence, or limitation alleged.” AR 1063.

22

“[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding

23

severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (citing Johnson

24

v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). Plaintiff reported trying “natural paths” to self-

25

treat her physical conditions “for many years,” until she was prescribed physical therapy and

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clinical diagnostic techniques. Psychiatric signs are medically demonstrable phenomena that
indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought,
memory, orientation, development, or perception, and must also be shown by observable facts that
can be medically described and evaluated.”
23

1

medications. AR 1063 (citing AR 741, 891). Once on medications, Plaintiff reported a “70%

2

improvement” in her symptoms, that she was “doing well with no significant pain” and had “no

3

current major joint pain or swelling.” Id. (citing AR 741); see also AR 672, 780, 921. At times,

4

Plaintiff also reported taking only over the counter medication or no medication at all. AR 1063;

5

AR 375, 399 (listing only “Benadryl” on current medication forms); AR 556, 976 (“not taking any

6

medication now”); AR 1109 (testifying in August 2020 that she was taking no pain medication “at

7

this point”). Similarly, Plaintiff reported engaging in no mental health treatment prior to April

8

2015, when she started attending therapy. AR 565, 634. She started psychotropic medication four

9

months later. AR 635. While on medication and in therapy, Plaintiff was noted as “remarking
less and less about her multiple somatic complaints” and being “[m]ore organized” and having a

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Northern District of California

10

“more even” mood with “improved executive functioning. AR 643, 646, 699, 702, 770, 981,

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1942. The ALJ appropriately considered Plaintiff’s responsiveness to treatment in discounting her

13

allegations. 20 C.F.R. § 404.1529(c)(3); Mead v. Astrue, 330 F. App’x 646, 648 (9th Cir. 2009)

14

(ALJ properly discounted claimant’s self-reports where treatment notes indicated that her

15

depression had improved, she responded well to treatment, and she could perform activities of

16

daily living) (citing Thomas, 278 F.3d at 958-59). Additionally, the record is devoid of psychiatric

17

hospitalizations or specialized inpatient psychiatric care, even during periods of medication

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absence or noncompliance. AR 1063 (citing AR 565, 646, 664, 694, 702).

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c.

Activities of Daily Living

The ALJ also considered Plaintiff’s subjective statements, finding them inconsistent with

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her reported activities of daily living. AR 1063; see 20 C.F.R. § 404.1529(c)(3) (in addition to

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considering objective medical evidence, ALJ considers whether and to what extent the claimant’s

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subjective statements are consistent with other evidence in the record). The ALJ observed that

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Plaintiff’s daily activities suggested she could perform the range of simple, medium exertional

25

work assessed in her RFC. AR 1063. For example, Plaintiff reported the ability to perform her

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own grooming, prepare meals, read, use a computer, walk, run errands, go shopping, go to the

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movies, go out to eat, call friends, pay bills, go out alone, complete household tasks, and make

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decisions. AR 1063 (citing AR 566-67, 655-66). Prior to January 1, 2018, Plaintiff also reported
24

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the ability to live alone (AR 666, 1090), work 20-25 hours a week as an apartment manager (AR

2

49), deal with tenant complaints and issues (AR 64), and walk a mile, ride a bicycle, and use

3

public transportation (AR 420, 431, 433, 663). As the ALJ noted, “such activities are not

4

determinative of the ability to work,” but rather “provide insight into [Plaintiff]’s functioning and

5

suggest a greater degree of function than alleged.” AR 1063.
It is well-established Ninth Circuit precedent that an ALJ may consider a claimant’s

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activities insofar as those activities are not consistent with her allegations. See Molina, 674 F.3d

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at 1113 (“Even when everyday activities suggest some difficulty functioning, they may be grounds

9

for discrediting [Plaintiff’s] testimony to the extent that they contradict claims of a totally
debilitating impairment.”); Valentine v. Astrue, 574 F.3d 685, 693 (9th Cir. 2009) (while evidence

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Northern District of California

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did not suggest claimant could work, it “suggest[ed] that [his] later claims about the severity of his

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limitations were exaggerated”). In other words, the issue before the ALJ was not whether

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Plaintiff’s activities evince actual vocational ability, but rather whether they suggest greater

14

functional ability than she has alleged. Thus, the ALJ properly considered whether Plaintiff

15

engaged in daily activities inconsistent with her alleged symptoms. See Molina, 674 F.3d at 1113.
Plaintiff contends that because these were “admitted” or “reported” activities, they cannot

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be viewed as contradictory to her symptom allegations. Pl.’s Mot. at 21. However, the basis of

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Plaintiff’s application for benefits is that she was completely disabled, and her activities indicating

19

otherwise are a germane consideration. For example, Plaintiff’s allegation that she was wholly

20

incapable of being exposed to any chemicals (id. at 8; see, e.g., AR 53-54), was inconsistent with

21

her admission that she worked for 16 months as a housekeeper (AR 409, 439, 444, 481, 1376).

22

Similarly, Plaintiff’s allegation that she could only pay attention “a few minutes at a time” (AR

23

433) was inconsistent with her admission that she could drive a motor vehicle, unaccompanied,

24

over extended distances (AR 63, 1106). That Plaintiff admitted or reported these contradictory

25

activities does not make her alleged symptom allegations conform to her actual activities. The

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ALJ reasonably found that Plaintiff’s documented activities were inconsistent with her allegations

27

of extreme and persistent symptoms causing her work-preclusive limitations, prior to January 1,

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2018.
25

1

3.

Conclusion

2

In sum, the Court finds the ALJ properly considered the inconsistencies of record in

3

discounting Plaintiff’s allegations of disabling symptoms. See, e.g., Yacoobali v. Saul, 2020 WL

4

1322971, at *5-6 (N.D. Cal. Mar. 20, 2020) (ALJ appropriately discounted symptom testimony

5

where claimant’s mental status examinations often revealed normal findings, the claimant could

6

travel, drive, and attend school, and his symptoms improved with treatment) (citing Tommasetti,

7

533 F.3d at 1040). Because the ALJ’s findings were reasonable and well supported, the Court

8

must affirm.

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E.

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Step Five
At step five, the ALJ had to determine whether Plaintiff could successfully transition to

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Northern District of California

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other work. That required exploring two issues. First, the ALJ needed to identify the types of jobs

12

Plaintiff could perform notwithstanding her disabilities. See 20 C.F.R. §§ 404.1560(c)(1),

13

416.960(c)(1). Second, the ALJ needed to ascertain whether those kinds of jobs “exist in

14

significant numbers in the national economy.” Id. (both); see id. §§ 404.1566, 416.966. For

15

guidance on such questions, ALJs often seek the views of vocational experts. See id. §§

16

404.1566(e), 416.966(e). As the Supreme Court has recognized, a vocational expert is a

17

“professional,” contracted to provide “impartial testimony,” who “must have expertise and current

18

knowledge” of the “conditions and physical demands” associated with various jobs, as well as

19

“[i]nvolvement in or knowledge of placing adult workers[ ] with disabilities[ ] into jobs.” Biestek,

20

139 S. Ct. at 1152 (simplified). An ALJ’s reliance on qualified, cogent, and uncontradicted expert

21

testimony generally constitutes substantial evidence in support of an ALJ’s finding. See Ford, 950

22

F.3d at 1159.

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24
25
26
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As noted above, the ALJ determined that, prior to January 1, 2018, Plaintiff had the RFC
to perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c) consisting of the ability to lift, carry, push or pull up to 50
pounds occasionally and 25 pounds frequently; stand and walk 6 out
of 8 hours a day; sit 6 out of 8 hours a day; frequently climb ramps,
stairs, stoop, kneel, crouch, and crawl; frequently handle and finger
with the upper extremities; tolerate no more than occasional exposure
to gases, fumes, odors, dusts, poor ventilation, or chemicals; do work
that excludes climbing ladders, ropes, and scaffolds, more than
occasional exposure to extreme cold and vibrations, exposure to
26

dangerous moving machinery or unprotected heights. The claimant
can perform simple work tasks involving occasional and superficial
contact with coworkers and public, and do no assembly line or
production paced work.

1
2
3

AR 1061. The ALJ included these limitations in a hypothetical posed to the vocational expert,

4

who testified that a hypothetical individual of Plaintiff’s age, educational level, and vocational

5

profile, with the assessed limitations, could perform the jobs of a Grocery Store Bagger (DOT

6

code 920.687-014), Automobile Detailer (DOT code 915.687-034), and Hospital Food Service

7

Worker (DOT code 319.677-014), and that those jobs existed in significant numbers in the

8

national economy. AR 1069, 1113-17.

9

Plaintiff argues the ALJ failed to consider the expert’s additional testimony. Specifically,
on cross examination, her attorney asked if these occupations involved any sitting, to which the

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10

vocational expert responded “oh, my goodness, no. No. On . . . your feet all day.” AR 1118. On

12

follow-up regarding the Auto Detailer occupation, the vocational expert testified that a vast

13

majority of the day except for a few minutes here and there the detailer would be on their feet. AR

14

1120. The vocational expert testified the same for the Bagger and the Hospital Food Worker. AR

15

1121. Plaintiff argues the ALJ’s failure to discuss this testimony constitutes legal error since the

16

ALJ found she could only stand and walk for up to six hours in a workday, and she therefore does

17

not possess the physical ability to perform the occupations identified by the vocational expert.

18

Pl.’s Mot. at 18-19. The Court agrees.

19

The ALJ based her decision on the testimony of the vocational expert. AR 1070 (“Based

20

on the testimony of the vocational expert, prior to the established onset date of disability,

21

considering the claimant’s age, education, work experience, and residual functional capacity, the

22

claimant was capable of making a successful adjustment to other work that existed in significant

23

numbers in the national economy.”). However, the ALJ did not follow up with the expert

24

regarding his testimony on cross-examination. While the expert first acknowledges the ALJ’s

25

standing limitation and testified that it would not preclude performance of the listed jobs (AR

26

1113-17), he then appears to concede that all three positions require employees to be on their feet

27

“all day”:

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Q Okay. Does that job [(Grocery Store Bagger)] involve any sitting?
27

1

A Sitting? Oh, my goodness, no. No. On --

2

Q Okay.

3

A -- your feet all day.

4

***

5

Q . . . And so the only -- would the only sitting in that job
[(Automobile Detailer]) be when they’re in the car?

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United States District Court
Northern District of California

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A And that’s -- yeah. And that’s, like a few minutes here and there.
The vast majority of the day, the automobile detailer is on their feet.
Q All right. Same thing with the hospital food service
worker?
A Yeah. Extensive being on their feet. Sitting, very minimal.
AR 1118, 1120-21.
Defendant does not address this testimony directly, instead arguing the only circumstance

13

under which a vocational expert’s testimony may not, on its own, constitute substantial evidence is

14

when there is an apparent conflict with the DOT. Def.’s Mot. at 24-25. It is true that, under

15

Social Security Ruling 00-04p, an ALJ must resolve any conflicts between vocational expert

16

testimony and information in the DOT, see SSR 00-04p, 2000 WL 1898704, and that “[a] conflict

17

must exist between the expert’s testimony and the DOT in order to trigger the ALJ’s responsibility

18

to resolve the conflict,” Dewey v. Colvin, 650 F. App’x 512, 514 (9th Cir. 2016). However, in this

19

case, the vocational expert’s testimony appears to be self-contradictory, and neither he nor the ALJ

20

made any effort to resolve this conflict. In such circumstances, the ALJ may not rely on the

21

vocational expert’s testimony to find that Plaintiff could perform the listed positions. See

22

Hamilton v. Comm’r of Soc. Sec. Admin., 464 F. App’x 681, 682 (9th Cir. 2012) (“Substantial

23

evidence does not support a finding of disability where the VE’s testimony either is contradictory

24

or responds to an inaccurate hypothetical.”); Lucy v. Saul, 2020 WL 1318803, at *10 (W.D. Tenn.

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Mar. 20, 2020) (ALJ commits reversible error where she “relie[s] on [a] vocational expert’s initial,

26

confident testimony about the jobs the claimant could perform without recognizing the expert’s

27

conclusions collapsed on cross examination.”); Reed v. Comm’r of Soc. Sec., 2021 WL 928401, at

28

*3-5 (S.D. Ohio Mar. 11, 2021) (vacating a decision by the ALJ because it relied on a vocational
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1

expert’s testimony that the claimant “would be able to perform the requirements of specific

2

occupations such as housekeeping cleaner, folder, and inspector” but on cross-examination the

3

“[claimant’s] ability to perform these jobs was brought into question by the vocational expert’s

4

own testimony”).

5

Where a vocational expert’s testimony appears to be self-contradictory, remand is

6

appropriate. See Hamilton, 464 F. App’x at 682 (remanding when light-work positions described

7

by vocational expert could not accommodate claimant’s at-will sit/stand limitation “according to

8

the VE’s own testimony”); Hernandez v. Colvin, 2014 WL 1800408, at *5 (C.D. Cal. May 6,

9

2014) (remanding where vocational expert presented conflicting testimony, first stating that an
individual capable of only six hours of standing could perform claimant’s past relevant work, then

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United States District Court
Northern District of California

10

conceding that those positions as typically performed required standing throughout an eight-hour

12

day except for the 50 minutes allotted for lunch and breaks); Garcia v. Colvin, 2015 WL 2384172,

13

at *13 (S.D. Cal. May 18, 2015) (remand appropriate where ALJ failed to resolve seemingly

14

contradictory testimony by vocational expert); Williams v. Soc. Sec. Admin., 357 F. App’x 741,

15

742 (9th Cir. 2009) (remanding because vocational expert provided conflicting testimony as to

16

whether doctor’s report required a finding of disability at step five).
Accordingly, the Court remands on this issue.

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19

F.

Remedy
The remaining question is whether to remand for further administrative proceedings or for

20

the immediate payment of benefits under the credit-as-true doctrine. “When the ALJ denies

21

benefits and the court finds error, the court ordinarily must remand to the agency for further

22

proceedings before directing an award of benefits.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th

23

Cir. 2017) (citing Treichler, 775 F.3d at 1099). However, under the credit-as-true rule, the Court

24

may order an immediate award of benefits if three conditions are met. First, the Court asks,

25

“whether the ‘ALJ failed to provide legally sufficient reasons for rejecting evidence, whether

26

claimant testimony or medical opinion.’” Id. (quoting Garrison, 759 F.3d at 1020). Second, the

27

Court must “determine whether there are outstanding issues that must be resolved before a

28

disability determination can be made, . . . and whether further administrative proceedings would
29

1

be useful.” Id. (citations and internal quotation marks omitted). Third, the Court then “credit[s]

2

the discredited testimony as true for the purpose of determining whether, on the record taken as a

3

whole, there is no doubt as to disability.” Id. (citing Treichler, 775 F.3d at 1101).

4

It is only “rare circumstances that result in a direct award of benefits” and “only when the
record clearly contradicted an ALJ’s conclusory findings and no substantial evidence within the

6

record supported the reasons provided by the ALJ for denial of benefits.” Id. at 1047. Further,

7

even when all three criteria are met, whether to make a direct award of benefits or remand for

8

further proceedings is within the district court’s discretion. Id. at 1045 (citing Treichler, 775 F.3d

9

at 1101). While all three credit-as-true factors may be met, the record as a whole could still leave

10

doubts as to whether the claimant is actually disabled. Trevizo v. Berryhill, 871 F.3d 664, 683 (9th

11

United States District Court
Northern District of California

5

Cir. 2017) n.11. In such instances, remand for further development of the record is warranted. Id.

12

Here, the ALJ failed to fully and fairly develop the record with regard to conflicts in the

13

vocational expert’s testimony, but it is not clear that the ALJ would be required to find Plaintiff

14

disabled once those conflicts are resolved. Accordingly, remand for further proceedings is

15

appropriate.

16
17

VI.

CONCLUSION

For the reasons stated above, the Court GRANTS Plaintiff’s motion, DENIES

18

Defendant’s cross-motion, and REVERSES the ALJ’s decision. This matter is REMANDED for

19

further proceedings to (1) resolve the vocational expert’s self-contradictory testimony, and (2)

20

determine whether clarification of the expert’s testimony impacts the pre-2018 disability

21

determination in any way. The Court shall enter a separate judgment, after which the Clerk of

22

Court shall terminate the case.

23

IT IS SO ORDERED.

24
25

Dated: January 10, 2022

26
THOMAS S. HIXSON
United States Magistrate Judge

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