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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 ANGELA D., Case No. 8:19-cv-00483-KES

12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER

14 ANDREW M. SAUL, Commissioner of Social Security,1 15 Defendant. 16

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18 I.

19 PROCEDURAL BACKGROUND

20 In November 2014, Plaintiff Angela D. (“Plaintiff”) applied for disability 21 benefits under Titles II and XVI alleging a disability onset date of January 27, 22 2014. Administrative Record (“AR”) 230-42. 23 On September 5, 2017, an Administrative Law Judge (“ALJ”) conducted a 24 hearing at which Plaintiff, who was represented by an attorney, appeared and 25 testified, as did a vocational expert and a medical expert. AR 101-19. On October 26

27 1 Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d). 28 1 18, 2017, the ALJ issued an unfavorable decision. AR 19-37. 2 The ALJ found that Plaintiff suffered medically determinable severe 3 impairments consisting of “fibromyalgia, status/post left breast carcinoma, morbid 4 obesity, and status/post bariatric surgery.” AR 24. Despite her impairments, the 5 ALJ found that Plaintiff had the residual functional capacity (“RFC”) to do light 6 work as defined in

(b) and 416.967(b) with some additional 7 limitations. AR 26. Based on this RFC and the VE’s testimony, the ALJ found 8 that Plaintiff could perform her past relevant work as a customer service 9 representative, tax preparer, cashier, and file clerk. AR 29. The ALJ concluded 10 that Plaintiff was not disabled between January 27, 2014, and the date of the 11 decision.

12 II. 13 ISSUES PRESENTED 14 This appeal presents the sole issue of whether the ALJ provided “clear and 15 convincing” reasons for discounting Plaintiff’s subjective symptom testimony. 16 (Dkt. 24, Joint Stipulation [“JS”] at 4.) 17 III. 18 LEGAL STANDARD 19 It is the ALJ’s role to evaluate the claimant’s testimony regarding subjective 20 pain or symptoms. See Molina v. Astrue,

(9th Cir. 2012).2 21

22 2 On March 24, 2016, the Social Security Administration (“SSA”) published Social Security Ruling 16-3p, 2016 SSR LEXIS 4 (“SSR 16-3p”), which 23 eliminated use of the term “credibility” from SSA sub-regulatory policy. SSR 16- 24 3p was republished on October 25, 2017 with the revision that the ruling was “applicable on March 28, 2016.” See

, 49468 & n.27 (Oct. 25, 25 2017). Here, the ALJ issued his opinion in October 2017, such that SSR 16-3p 26 was in effect. The Ninth Circuit has noted that SSR 16-3p is consistent with its prior precedent. Trevizo v. Berryhill,

, 678 n.5 (9th Cir. 2017) (SSR 27 16-3p “makes clear what [Ninth Circuit] precedent already required”). 28 Accordingly, citation to earlier case law is appropriate. 1 | “[T]he ALJ is not required to believe every allegation of disabling pain, or else 2 | disability benefits would be available for the asking, a result plainly contrary to 3 |

(d)(5)(A).”

at 1112 Gnternal quotation marks omitted). An 4 | ALJ’s assessment of symptom severity is entitled to “great weight.” Weetman v. 5 | Sullivan,

(9th Cir. 1989). 6 If an individual alleges impairment-related symptoms, the ALJ must 7 | evaluate those symptoms using a two-step process. First, “the ALJ must determine 8 || whether the claimant has presented objective medical evidence of an underlying 9 | impairment ‘which could reasonably be expected to produce the pain or other 10 | symptoms alleged.’” Treichler v. Comm’r of SSA,

(9th Cir. 11 | 2014) (citation omitted). Second, if the claimant meets the first test, the ALJ may 12 | discredit the claimant’s subjective symptom testimony only upon making specific 13 | findings that support the conclusion. Berry v. Astrue,

(9th 14 | Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must 15 | provide “clear and convincing” reasons for rejecting the claimant’s testimony. 16 | Ghanim v. Colvin,

, 1163 & n.9 (9th Cir. 2014). 17 If the ALJ’s findings are supported by substantial evidence in the record, 18 | courts may not engage in second-guessing. Thomas v. Barnhart,

, 19 | 959 (9th Cir. 2002). 20 IV. 21 DISCUSSION 22 A. Summary of the Medical Evidence. 23 In October 2011, while undergoing cancer treatment, Plaintiff had a 24 | “normal” gait. AR 389, 393. Per her 2011 Function Report, she did not use an 25 || assistive device to ambulate. AR 275. 26 In January 2012, Plaintiff reported “mild pain.” AR 496, 499. She had a 27 | benign bone scan. AR 503. Later in 2012, as part of some earlier disability 28 | proceedings, a doctor determined that despite her claims of increased nerve pain,

1 Plaintiff’s medical evidence did not establish a “material change” in her condition. 2 AR 418-19. 3 In January 2013, Plaintiff complained of “generalized bone pains that started 4 about a month ago” and “chronic knee pains.” AR 493. Plaintiff was referred to a 5 neurologist to determine if Tamoxifen might be causing her pain. AR 495. This 6 treating record also says, “Will refer pt to a rheumatologist to assess joint/body 7 pains; auth requested today.” AR 495. By July 2013, Plaintiff reported that she 8 “has been doing well” and was continuing to work “for billing for rentals.com.” 9 AR 566. 10 In August 2013, she lost her insurance. AR 502. By March 2014, however, 11 she had obtained new insurance. AR 502-03. 12 In June and November 2014, Plaintiff’s treating records do not contain a 13 fibromyalgia diagnosis. AR 443, 451, 528; compare later record at AR 439. In 14 June 2014, x-rays of Plaintiff’s lumbar spine revealed only “mild” degenerative 15 disc disease. AR 428. In November 2014, Plaintiff complained of abdominal pain 16 and requested “pain medication or muscle relaxant.” AR 527. She was 17 encouraged to follow up with her primary care physician. AR 528. 18 In April 2015, Plaintiff told the consultative examiner, Dr. Enriquez, that she 19 had been diagnosed with fibromyalgia and osteoarthritis in 2010 based on an 20 “extensive” workup including blood tests and x-rays, but those 2010 records are 21 not in the AR. AR 430. Plaintiff seemed to be in “mild diffuse pain” and claimed 22 tenderness at the tender points associated with fibromyalgia. AR 432. Dr. 23 Enriquez observed normal or only slight limitations on Plaintiff’s range of motion, 24 5/5 motor strength, and “normal muscle tone and bulk without atrophy.” AR 433- 25 34. Dr. Enriquez reported, however, that Plaintiff was using a cane during the 26 appointment and exhibited a “mild limp” on the right side. AR 433. Nevertheless, 27 Plaintiff was “able to walk unassisted.”

Dr. Enriquez ultimately opined that 28 Plaintiff could walk, sit, or stand with normal breaks for 6 hours in an 8-hour day. 1 AR 434. 2 In May 2015, Plaintiff had a follow-up appointment regarding her breast 3 cancer treatment. AR 438, 508. The record notes a past fibromyalgia diagnosis, 4 but the treating sources did not comment on any limp or ambulation difficulty. AR 5 438-40. 6 In June 2015, Plaintiff underwent radiological testing that revealed a 7 “normal” lumbar spine and knees. AR 435. A physical examination revealed no 8 abdominal or back tenderness. AR 453. 9 On August 10, 2015, Plaintiff saw Dr. Lutsky, an orthopedic surgeon to 10 whom she was referred due to complaints of knee pain. AR 464-65. He described 11 her as having “no acute distress” and “FROM [full range of motion];” he did not 12 mention a limp or a cane. AR 466-67. 13 In contrast, a few days later on August 18, 2015, a therapist treating Plaintiff 14 noted that she “walked with a cane and appeared to be in physical distress.” AR 15 468. 16 In October 2015, Dr. Lutsky noted that Plaintiff complained of knee pain but 17 had recently had a normal knee MRI. AR 470. He again assessed “FROM” and 18 said nothing about a limp or a cane. AR 470-72. 19 In December 2015, Plaintiff decided to pursue weight-loss surgery. AR 476. 20 Per Dr. Lutsky, her treatment plan was “diet and exercise.” AR 477. She had 21 bariatric surgery in February 2016. AR 597. 22 In March 2016, Plaintiff had a pre-op examination to prepare for breast 23 reconstruction surgery. AR 478. At that time, she was “negative for extremity 24 pains or joint discomfort.”

Under “musculoskeletal,” the treating source noted 25 “no weakness.”

Notes from that surgery say nothing about any ambulatory 26 problems. AR 483-85, 492. 27 In June 2016, Plaintiff returned to the Pacific Cancer Medical Center after 28 more than a year’s lapse in treatment due to insurance issues. AR 552-54. She 1 | complained of “generalized body pain due to her fibromyalgia.” AR 552. She 2 | reported that “her PCP requested Lyrica for her however, it was denied.” AR 554. 3 || No such record is in the AR. Plaintiff stated that she would go to her PCP for 4 | alternatives, but there is no indication in the record that she did so.

5 In August and November 2016, Plaintiff was again “negative for extremity 6 | pains or joint discomfort.” AR 584, 592. 7 B. Summary of Plaintiff’s Testimony. 8 At the September 2017 hearing, Plaintiff testified that she experienced 9 | “constant” pain in her “whole body” that she attributed to fibromyalgia. AR 108. 10 | She first testified that sitting “for a long period of time,” standing, or bending made 11 | her pain worse. AR 109. She then clarified that she could only sit for “about 10 12 | minutes” before pain would force her to get up.

She estimated that she could 13 | walk for 15 minutes before experiencing cramps in her lower back.

She 14 | testified that she could not bend over, and she could lift a gallon of milk (about 8 15 | pounds) but would shake while doing so. AR 26, 110. She estimated that she 16 | could lift between five and fifteen pounds. AR 112-13. She spent her typical day 17 | shifting between sitting, moving around, and laying down. AR 110. She estimated 18 | that between the hours of 9:00 a.m. and 5:00 p.m., she typically spent “four or five 19 | hours” laying down. AR 112. 20 She was able to drive, but “not too far” without pain in the back of her leg. 21 | AR 110. She lived alone and was able to prepare meals for herself in the 22 | microwave. AR 111. A relative helped her with housework. AR 111, 115. She 23 | testified that she could not work because working required lifting “at least 20 to 30 24 | pounds” and standing, which she could not do. AR 112. 25 She was taking pain medication, but she testified that 1t was “not really” 26 | working, because she was “always in pain.” AR 114. She used to take Norco once 27 | a day, but had recently changed to Celebrex, which she took every morning. AR 28 | 114-15.

1 Plaintiff completed a Function Report in 2011 when she was undergoing 2 | chemotherapy and lived with her mother. AR 269-76. At that time, she indicated 3 || that she suffered from pain and fatigue and had trouble standing for long periods of 4 | time.

She did not indicate any problems with sitting. AR 274. Her mother 5 | also indicated that she had no problems with sitting. AR 290. Plaintiff did not use 6 || acane or other assistive device. AR 275. 7 Plaintiff last worked in October 2013 as a customer service representative. 8 | AR 311. At that time, she was able to walk for 2 hours, stand for 1 hour, and sit 9 | for 7 hours during a workday. AR 312. Her job duties included answering phones, 10 | making copies, and walking to other departments.

She stopped working when 11 | her department moved out of state. AR 305. 12 C. Relevant Administrative Proceedings. 13 First, the ALJ noted that Plaintiff was diagnosed with breast cancer in 2011, 14 || after which she received treatment; the ALJ found “no evidence of recurrence or of 15 | any significant breast cancer-related symptoms or functional limitations since the 16 | alleged onset date of January 27, 2014.” AR 27. This appears uncontested. AR 17 | 114 (Plaintiff testified that her cancer is “in remission.”) Plaintiff attributed her 18 | pain and resulting functional impairment to fibromyalgia. AR 113. 19 The ALJ discounted Plaintiff’s pain testimony, finding that “her statements 20 | concerning the intensity, persistence and limiting effects of [her] symptoms are not 21 | entirely consistent with the medical evidence and other evidence in the record, for 22 | the reasons explained in this decision.” AR 27. The ALJ gave the following 23 | reasons for discounting Plaintiff’s testimony: (1) lack of supporting objective 24 | evidence, (2) inconsistency with physical examinations that did not document 25 | significant functional limitations, (3) conservative treatment, and (4) unnecessary 26 || use of a cane. 27 1. Lack of Supporting Objective Evidence. 28 While a claimant’s subjective statements about symptoms “cannot be

1 rejected on the sole ground that it is not fully corroborated by objective medical 2 evidence, the medical evidence is still a relevant factor in determining the severity 3 of the claimant’s pain and its disabling effects.” Rollins v. Massanari,

(9th Cir. 2001). 5 The ALJ noted that while Plaintiff claimed arthritis in both knees and her 6 lower back, the record does not contain any abnormal imaging of Plaintiff’s knees. 7 AR 25. The only spinal imaging in the record had “mild” findings.

citing AR 8 428. The ALJ summarized Plaintiff’s treating records and then concluded that her 9 “primary care treatment notes since the alleged onset date are largely devoid of 10 positive objective findings.” AR 28. The summary of the medical evidence above 11 supports this conclusion. 12 Plaintiff argues that this reason carries little weight where a claimant suffers 13 from fibromyalgia, because there is no objective test for determining the severity 14 of fibromyalgia pain. (JS at 8-9.) Plaintiff, however, also told the consultative 15 examiner that she had been diagnosed with osteoarthritis. AR 430. She also wrote 16 in her Disability Report that her “chronic arthritis in both knees” and “arthritis in 17 [her] low back” limited her ability to work. AR 305. Thus, the ALJ could 18 properly comment on the absence of objective evidence showing joint narrowing 19 or deterioration indicative of osteoarthritis. 20 2. Inconsistent with Physical Examinations. 21 The ALJ found, “physical examination findings throughout [Plaintiff’s] 22 treatment records are generally unremarkable.” AR 27. Indeed, there is not a 23 single physical examination after Plaintiff’s alleged onset date assessing Plaintiff 24 with significantly reduced muscle strength or range of motion. No treating source 25 assessed her as having an abnormal gait or tender points consistent with a 26 fibromyalgia diagnosis. To the contrary, multiple examinations found no 27 complaints of pain or only mild complaints. See, e.g., AR 496, 499, 566, 432, 453, 28 584, 592. During her period of claimed disability, Plaintiff was twice cleared for 1 elective surgeries, all without any mention of her suffering disabling pain. AR 2 597, 483-85. This evidence supports the ALJ’s finding. 3 3. Conservative Treatment. 4 While the parties dispute in the briefing whether certain treatment is, or is 5 not, conservative, the real issue is whether the recommended treatment was more 6 conservative than one would expect given the level of Plaintiff’s claimed 7 functional limitations and the nature of her underlying impairments. See Parra v. 8 Astrue,

(9th Cir. 2007) (noting that evidence of conservative 9 treatment “is sufficient to discount a claimant’s testimony regarding severity of an 10 impairment”); Johnson v. Shalala,

(9th Cir. 1995) (“[T]he ALJ 11 [appropriately] noted the absence of medical treatment for claimant’s back 12 problem … suggesting that if the claimant had actually been suffering from the 13 debilitating pain she claimed she had, she would have sought medical treatment 14 during that time.”). 15 Here, Plaintiff testified that her pain is so severe, she is required to spend the 16 majority of the day laying down. AR 112. Despite this high level of claimed 17 impairment, the ALJ noted that her only treatment was pain medication. AR 26, 18 27 (citing prescription records). The ALJ noted “there is no evidence that the 19 claimant was treated by or referred to a rheumatologist.” AR 27. 20 In fact, Plaintiff was referred to a rheumatologist. AR 495. The record, 21 however, contains no treatment records from a rheumatologist, so it appears that 22 Plaintiff did not follow up, perhaps because of her insurance troubles at the time. 23 The Court finds that this reason, as articulated by the ALJ, was not supported by 24 evidence in the record.3 25 3 Given the severity of Plaintiff’s claims, one would expect to see referrals to 26 other forms of pain treatment (like injections, physical therapy, or acupuncture), but the ALJ did not discuss the lack of such referrals as a reason to discount 27 Plaintiff’s testimony. Further, it does not appear that Plaintiff pursued this 28 rheumatology referral. See AR 99 (October 2017 record noting, “She reports 1 4. Unnecessary Use of a Cane. 2 Where a claimant asserts that he/she must use a cane (although there is no 3 evidence of medical necessity) or displays a limp only periodically, such facts 4 support a finding that the claimant is exaggerating his/her impairments. See, e.g., 5 Rojas v. Astrue, No. 10CV2461 JLS (RBB),

, at *42 6 (S.D. Cal. Mar. 19, 2012) (holding ALJ gave clear and convincing reason for 7 discounting claimant’s subjective symptom testimony where the ALJ described 8 how the claimant used a cane at a consultative evaluation and limped without it, 9 although there was “no medical basis for Plaintiff's cane use”). 10 Here, the ALJ noted that the only people who reported seeing Plaintiff use a 11 cane were (1) the consultative examiner in April 2015, and (2) a therapist in 12 August 2015. AR 27. The ALJ correctly noted that no medical source had 13 prescribed a cane. Plaintiff’s most recent medical records before April 2015 did 14 not even contain a fibromyalgia diagnosis, let alone observations of a limp with a 15 diagnosis for a cane. AR 443, 451, 527-28. In between April 2015 and August 16 2015, Plaintiff had “normal” imaging of her knees, examinations that revealed no 17 tenderness, and a full range of motion. AR 435, 453, 466-67. Dr. Lutsky saw 18 Plaintiff just days before the therapist wrote her note, and he said nothing about 19 Plaintiff limping or needing a cane. AR 464-67. Instead, Dr. Lutsky counselled 20 Plaintiff to exercise. AR 467. 21 This evidence supports the ALJ’s finding that Plaintiff was exaggerating her 22 symptoms by taking a cane to her consultative examination and walking with a 23 limp. 24 // 25 // 26 27 possibly having fibromyalgia but has not been on any fibromyalgia treatment”). 28

CONCLUSION 3 For the reasons stated above, IT IS ORDERED that judgment shall be 4 | entered AFFIRMING the decision of the Commissioner. 5 6 | DATED: January 24, 2020

8 KAREN E. SCOTT 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11