1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NORMA ALICIA M., Case No.: 20-cv-02260-KSC

12 Plaintiff, ORDER ON JOINT MOTION FOR 13 v. JUDICIAL REVIEW

14 KILOLO KIJAKAZI, Acting

Commissioner of Social Security, 1 15 [Doc. No. 16] Defendant. 16 17 18 On November 19, 2020, plaintiff Norma Alicia M. (“plaintiff”) filed a complaint 19 pursuant to

(g) seeking judicial review of defendant’s denial of his 20 application for disability benefits. Doc. No. 1. Before the Court is the parties’ Joint Motion 21 for Judicial Review (the “Joint Motion” or “Jt. Mot.”). Doc. No. 16. In the Joint Motion, 22 plaintiff requests to have defendant’s (“defendant” or the “Commissioner”) determination 23 that plaintiff is not disabled vacated; defendant seeks affirmance. The Court has carefully 24 considered the parties’ arguments, the applicable law, and the evidence in the record. For 25 the reasons stated below, the decision of the Commissioner is AFFIRMED. 26 27 28 1 I. BACKGROUND 2 A. Plaintiff’s Application for Benefits 3 Plaintiff suffers from fibromyalgia, chronic pain, diabetes, arthritis, and high blood 4 pressure, and alleges that these ailments prevent her from working in her usual occupation 5 as a grocery store cashier. See Jt. Mot. at 5 n.1.2 On August 2, 2018, plaintiff applied for 6 disability benefits, alleging a disability onset date of July 18, 2017. AR at 15. Her 7 application was denied at the initial stage and upon reconsideration.

Plaintiff requested 8 and received a hearing before an administrative law judge (“ALJ”). The hearing took place 9 on April 10, 2020 and plaintiff appeared with her counsel.3

. In a decision dated 10 June 16, 2020, the ALJ concluded that plaintiff was not disabled within the meaning of the 11 Social Security Act.

. The Appeals Council denied review of the ALJ’s decision 12 on September 18, 2020, and the decision became final on that date.

. 13 B. Summary of the ALJ’s Findings 14 The Administration employs a sequential five-step evaluation to determine whether 15 a claimant is eligible for benefits under the Social Security Act (the “Act”).4 The ALJ who 16

17 18 2 The Court adopts the parties’ pagination of the Certified Administrative Record (“AR”). 19 All other citations are to the page numbers generated by the Court’s CM/ECF system.

20 3 Due to the COVID-19 public health emergency, the hearing was held telephonically.

21 4 First, the ALJ must determine whether the claimant is engaged in substantial gainful activity.

§ 404.1520(a)(4)(i). Second, the ALJ must determine whether the claimant 22 suffers from a “severe” impairment within the meaning of the regulations. Id., 23 § 404.1520(a)(4)(ii). Third, if the claimant suffers from a severe impairment, the ALJ must determine whether that impairment meets or is medically equal to one of the impairments 24 identified in the regulations’ Listing of Impairments. Id., § 404.1520(a)(4)(iii). Fourth, if 25 the impairment does not meet or equal a listing, the ALJ must determine the claimant’s residual functional capacity (“RFC”) based on all impairments (including those that are not 26 severe) and whether that RFC is sufficient for the claimant to perform his or her past 27 relevant work. Id., § 404.1520(a)(4)(iv). At the fifth step, the ALJ must determine whether the claimant can make an adjustment to other work based on his or her RFC. Id., 28 1 adjudicated plaintiff’s claim followed this five-step process in rendering his decision. See 2 generally AR at 15-27. At Step One, the ALJ found plaintiff did not engage in substantial 3 gainful activity from the alleged date of the onset of plaintiff’s disability, July 17, 2018. 4 Id. at 18. 5 At Step Two, the ALJ found that plaintiff had the following severe physical 6 impairments: obesity, fibromyalgia, type 2 diabetes mellitus, diabetic polyneuropathy, 7 lumbar osteoarthritis, cervical stenosis, cervical and lumbar radiculopathy, cervicalgia, 8 status post right-hand fracture, degenerative joint disease of the right hand, and 9 osteoarthritis of the right thumb.5 AR at 18. The ALJ further found that these medically 10 determinable impairments “significantly limit [plaintiff’s] ability to perform basic work 11 activities.” Id. However, the ALJ found that plaintiff’s alleged depression was not 12 medically determinable. Id. As to plaintiff’s bilateral cataracts and hypertension, the ALJ 13 found that the evidence did not establish these impairments would have more than a 14 minimal effect on plaintiff’s ability to work, and therefore deemed them non-severe. Id. 15 At Step Three, the ALJ found that plaintiff’s impairments, whether alone or in 16 combination, did not meet or medically equal one of the impairments listed in the 17 Commissioner’s Listing of Impairments. Id. at 19. 18 Proceeding to Step Four, the ALJ found that plaintiff “has the residual functional 19 capacity to perform light work” with these exceptions: “she is limited to frequent climbing 20 of ramps and stairs, and occasional climbing of ladders, ropes, and scaffolds. She can 21 frequently balance, stop, kneel, crouch, and crawl. She can frequently handle and finger 22 with the right upper extremity.” Id. at 20. 23 After consideration of plaintiff’s testimony, her work history and daily activities, the 24 longitudinal record and the medical opinions and prior administrative findings in the 25

26 27 5 Plaintiff also reportedly suffers from bilateral cataracts, hypertension, and depression, but the ALJ determined that these ailments were either nonsevere or not medically 28 1 record, the ALJ found “in sum . . . that the evidence of the claimant’s daily activities along 2 with the objective medical evidence . . . establishes [that] [plaintiff] has a greater sustained 3 capacity than she alleges.” AR at 25. Instead, the ALJ assessed that plaintiff was able to 4 work “within the restrictions set forth in the above light residual functional capacity.” Id. 5 Based on her RFC, the ALJ further determined that plaintiff could not return to her previous 6 work as a grocery store cashier. Id. at 26. 7 At Step Five, the ALJ considered plaintiff’s age, education, work experience, and 8 the above-described RFC and determined that there were “jobs that exist in significant 9 numbers in the national economy that [plaintiff] can perform.” AR at 26. In making this 10 determination, the ALJ relied on the testimony of a vocational expert, who identified light- 11 work positions that could be performed by a person with plaintiff’s limitations.6 Id. at 27; 12 see also id. at 56-59 (vocational expert’s hearing testimony). 13 Based on the foregoing analysis and findings, the ALJ concluded that plaintiff had 14 not been under a disability within the meaning of the Act since July 18, 2017. Id. at 27. 15 Accordingly, her application for benefits was denied. Id. 16 II. DISPUTED ISSUES 17 The sole disputed issue is whether the ALJ “properly considered [plaintiff’s] 18 fibromyalgia and chronic pain testimony” in determining that she was capable of modified 19 light work. Jt. Mot. at 4. Plaintiff claims that the ALJ improperly discounted plaintiff’s 20 symptom testimony and failed to provide “specific, clear and convincing reasons” for 21 rejecting her subjective assessment of her limitations. Id. at 5-6. Plaintiff further asserts 22 that the ALJ ignored that for fibromyalgia sufferers, “ʻmostly normal results’” on physical 23 examination are common and conservative treatment of fibromyalgia is the norm. Id. at 7- 24 8. Plaintiff also claims that the ALJ “failed to develop the record” regarding plaintiff’s 25 26 27 6 These included light work as a mail clerk (DOT #209.687-026), office helper (DOT 28 #239.567-010), or marker (DOT #209.587-034). 1 daily activities and challenges his conclusion that plaintiff’s improvement with the use of 2 pain medication “translated to a sustained ability to work” as “lack[ing] any support from 3 the record.” Id. at 8-9. Plaintiff asserts that the ALJ reached his conclusion that she is not 4 disabled by “isolat[ing] portions of the record” and “fill[ing] in the gaps,” which is legal 5 error. Id. at 10. Plaintiff requests reversal of the ALJ’s decision and an award of benefits, 6 or, in the alternative, remand to the Administration for further proceedings. Id. at 21. 7 Defendant argues that the ALJ “carefully consider[ed] all of the evidence,” and 8 reasonably “found that [while] the record did corroborate [p]laintiff’s claims of functional 9 limitations,” it did not do so “to the disabling degree that she alleged.” Jt. Mot. at 11-12. 10 Defendant asserts that the ALJ properly concluded that plaintiff’s treatment history, her 11 demonstrated capabilities, and the medical evidence - including opinion evidence - 12 “undermined” her claimed limitations. Id. at 12. Defendant disputes that plaintiff’s 13 fibromyalgia claim prevents the ALJ from considering the objective medical evidence. Id. 14 at 15. Furthermore, defendant points out that while plaintiff “focus[es] only on [her] 15 fibromyalgia,” she alleged a host of impairments and does not offer any reason why the 16 ALJ’s assessment of these conditions in the context of the medical record was improper. 17 See id.at 14-15. In sum, Defendant argues that plaintiff has “not establish[ed] any error, let 18 alone reversible error,” and requests that the Court find the Commissioner’s decision to 19 deny benefits “supported by substantial evidence and free of legal error.” Id. at 14, 21-22. 20 III. STANDARD OF REVIEW 21 The Commissioner’s final decision “must be affirmed” if it is “supported by 22 substantial evidence, and if the Commissioner applied the correct legal standards.” Batson 23 v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2004). “Substantial evidence” 24 means “‘such relevant evidence as a reasonable mind might accept as adequate to support 25 a conclusion.’” Ford, 950 F.3d at 1154 (citing Biestek v. Berryhill,

, 1154 26 (2019)). This Court must review the entire record and consider adverse as well as 27 supporting evidence. See Ahearn v. Saul,

(9th Cir. 2021). Where the 28 evidence is susceptible of more than one rational interpretation, the Commissioner’s 1 decision must be upheld. See

However, the Court cannot uphold the Commissioner’s 2 decision for reasons “ʻthe agency did not invoke in making its decision.’” Stout v. Comm’r 3 Soc. Sec. Admin.,

(9th Cir. 2006) (citation omitted). The Court may 4 affirm an erroneous decision if it “is clear from the record that [the] error was 5 inconsequential to the ultimate nondisability determination.” Robbins v. Comm’r, Soc. Sec. 6 Admin.,

(9th Cir. 2006). 7 IV. DISCUSSION 8 A. The ALJ Properly Considered the Evidence in the Record 9 “The ALJ is responsible for translating and incorporating clinical findings into a 10 succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2015). 11 The crux of plaintiff’s challenge to the ALJ’s determination that she was not disabled is 12 her charge that the ALJ failed to appreciate what the Ninth Circuit has deemed the “unique 13 nature of the often-misunderstood condition of fibromyalgia.” David v. Kijakazi,

6101257, at *2 (9th Cir. 2021) (unpublished). 15 The Administration has issued guidance for the evaluation of fibromyalgia-based 16 disability claims. See Social Security Administration, Social Security Ruling 12-2p: Titles 17 II and XVI: Evaluation of Fibromyalgia (2012) (hereafter “SSR 12-2p”). Fibromyalgia, the 18 Administration explains, “is a complex medical condition characterized primarily by 19 widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for 20 at least 3 months.” See

There is no objective test for fibromyalgia. See David,

6101257, at *2 (noting that the condition “is diagnosed based entirely on a patient’s 22 subjective reports”). For purposes of a disability claim, fibromyalgia is established through 23 the patient’s subjective reports of pain and corroborated by either a physical examination 24 of so-called “tender points” or the “repeated manifestation” of certain coextensive 25 conditions, together with evidence that other potential causes of the patient’s symptoms 26 have been ruled out. See generally SSR 12-2p. “In evaluating whether a claimant’s residual 27 functional capacity renders them disabled because of fibromyalgia, the medical evidence 28 /// 1 must be construed in light of fibromyalgia’s unique symptoms and diagnostic methods 2 . . ..” Revels v. Berryhill,

(9th Cir. 2017). 3 This is not to say, however, that the ALJ is bound by a claimant’s subjective 4 testimony, or that it is improper for the ALJ to consider other medical and non-medical 5 evidence to determine whether a claimant is rendered disabled by fibromyalgia. See Diane 6 B. v. Kijakazi, No. 21-cv-00794-TSH,

, at *9 (N.D. Cal. Jan. 10, 2022) 7 (“The Court is aware of no authority that requires an ALJ to give dispositive weight to 8 [p]laintiff’s symptom allegations simply because they were associated with 9 fibromyalgia.”). Indeed, SSR 12-2p directs the adjudicator to consider the “longitudinal 10 records” to “establish[] both the existence and severity of the impairment.” See SSR 12- 11 2p; see also Revels,

(noting the importance of “looking at longitudinal 12 records,” since a person with fibromyalgia “may have ‘bad days and good days’”). And, as 13 with any other subjective report of a claimant’s functional limitations, an ALJ evaluating 14 a fibromyalgia-related disability claim must first determine whether there are “medical 15 signs and findings” that show that the fibromyalgia could “reasonably be expected to 16 produce” the alleged symptoms. See SSR 12-2p (citing SSR 96-7p). If so, the ALJ must 17 then further determine whether the “objective medical evidence substantiate[s] the . . . 18 statements about the intensity, persistence and functionally limiting effects” of the 19 fibromyalgia.

The ALJ must “consider all of the evidence in the case record” when 20 making this determination.

21 Whatever the claimant’s alleged impairments, the ALJ must provide “clear and 22 convincing reasons” supported by substantial evidence to find the claimant’s subjective 23 limitations are overstated. Lingenfelter v. Astrue,

(9th Cir. 2007). The 24 requirement that the ALJ state with specificity the reasons for rejecting a claimant’s 25 subjective testimony “permit[s] the reviewing court to conclude that the ALJ did not 26 arbitrarily discredit’” the testimony. William A. v. Saul,

, 1213 (D.

) (citation omitted); accord Lambert v. Saul,

(9th Cir. 2020) 28 /// 1 (noting that “the ALJ must provide sufficient reasoning” to “permit meaningful review” by 2 the Court). 3 The Court finds that these requirements were met in the case at bar. To reiterate, 4 plaintiff alleged she was “unable to work due to chronic pain associated with arthritis in 5 her back, bulging discs in her neck, and fibromyalgia.” AR at 21. Plaintiff testified that 6 because of her impairments, she could neither sit nor stand for more than ten minutes at a 7 time before needing to lay down, could not walk more than the distance to her mailbox, 8 could not lift or grasp objects, and required the use of a cane or “walking stick” to walk. 9 See AR at 43-52. 10 After reviewing the evidence in the record, the ALJ determined that plaintiff suffered 11 from chronic pain attributable to her various impairments. Id. at 21. He further determined 12 that plaintiff’s impairments caused some limitation in her ability to engage in work-related 13 activities. Id. However, the ALJ did not believe the evidence in the record supported her 14 allegations as to the “intensity, persistence and limiting effects” of her chronic pain. Id. 15 The ALJ detailed the record evidence that, in his assessment, undermined plaintiff’s 16 allegations of disabling pain. Id. at 21-25. In particular, the ALJ identified the following 17 evidence that suggested plaintiff’s alleged limitations were overstated: plaintiff’s pain was 18 effectively treated with medication and “managed through conservative measures;” the 19 record demonstrated that findings on examination were largely “unremarkable;” her 20 providers recommended she exercise and lose weight; and plaintiff’s daily activities were 21 “inconsistent” with her allegations of debilitating pain. See, e.g., AR at 23-25. 22 The ALJ also considered the medical opinions and prior administrative findings in 23 the record. See AR at 24-25. He found the March 2019 report of consultative examiner H. 24 Samplay, M.D. persuasive, as it was supported by and consistent with the longitudinal 25 record. Id. at 24; accord

.1520c(b)(2);

at § 404.1527(b) (requiring ALJ 26 to evaluate medical opinion testimony for supportability and consistency). Dr. Samplay 27 assessed that plaintiff was capable of light work and opined that plaintiff’s testimony as to 28 the severity of her symptoms was not supported by medical evidence. See id. at 83-84. The 1 ALJ found the opinions of plaintiff’s treating physician, Dr. Clotfelder, and her treating 2 chiropractor, Dr. Condon, were not persuasive. Id. at 24-25. The ALJ noted that the 3 limitations attested to by Dr. Clotfelder were inconsistent with her own treatment notes and 4 observed that they “appear to be based entirely on the claimant’s subjective complaints.” 5 Id. at 25. The ALJ found the chiropractor’s opinion that plaintiff “would have a very 6 difficult time standing . . . [or] sitting at a computer for a prolonged period of time” (AR at 7 496-97) to be vague and inconsistent with the objective medical evidence. Id. at 25. 8 Nothing more was required of the ALJ. See Connett v. Barnhart,

, 873- 9 74 (9th Cir. 2003) (finding ALJ properly rejected subjective testimony where the ALJ 10 “stated which testimony he found not credible and what evidence suggested that the 11 particular testimony was not credible”). Plaintiff complains that the ALJ’s findings reflect 12 a “fundamental lack of knowledge about fibromyalgia,” which is “not an orthopedic issue.” 13 Jt. Mot. at 8, 10, 18-19. As defendants point out, however, plaintiff alleged disability not 14 solely based on fibromyalgia but “due to a variety of other impairments,” including 15 osteoarthritis, degenerative disc disease and a previous fracture of her right hand, all of 16 which caused her chronic pain. Jt. Mot. at 15. The Court finds no error in the ALJ’s 17 consideration of the relatively conservative treatment for these conditions and the lack of 18 objective findings in the record to support the alleged limitations in determining whether 19 plaintiff’s symptom testimony was credible. See Burch v. Barnhart,

(9th 20 Cir. 2005) (stating that the ALJ “is permitted to consider” the objective medical findings 21 and treatment history in assessing the claimant’s credibility). 22 As described above, the ALJ articulated numerous reasons to reject plaintiff’s 23 symptom testimony. The Court is not persuaded that by doing so, the ALJ improperly 24 “isolate[d] portions of the record” and “fill[ed] in the gaps” to arrive at his RFC, Jt. Mot. 25 at 10. To the contrary, the ALJ provided a thorough and detailed discussion of the evidence 26 suggesting that plaintiff’s testimony was not credible. See AR at 21-25. He was not 27 required to explicitly address every item of evidence in the record. See Howard ex rel. 28 Wolff v. Barnhart,

(9th Cir. 2003) (noting that “in interpreting the 1 evidence and developing the record, the ALJ does not need to ‘discuss every piece of 2 evidence’”) (citations omitted). 3 Plaintiff takes issue with the ALJ’s interpretation of the record and argues that the 4 evidence cited by the ALJ instead supports a finding of disability. See Jt. Mot. at 8-11, 19. 5 But, it is not the role of this Court to “substitute its judgment” for the ALJ’s. Lewis, 236 6 F.3d at 509. Even if, as plaintiff asserts, the evidence “may also admit … an interpretation 7 more favorable to [plaintiff],” the ALJ’s decision must be upheld where “the evidence is 8 susceptible to more than one rational interpretation.’” See Burch,

(citations 9 omitted). For the reasons stated, the Court finds that the ALJ’s interpretation of the 10 evidence is rational and his decision will not be disturbed.

11 B. Substantial Evidence Supports the ALJ’s RFC Determination 12 Having found that the ALJ’s assessment of the longitudinal record was not the 13 product of legal error, the Court must nevertheless independently assess whether 14 substantial evidence supports the ALJ’s RFC determination. Ahearn,

. To 15 that end, the Court has independently reviewed the administrative record, and concludes 16 that substantial evidence supports the ALJ’s determination that plaintiff could perform a 17 modified range of light work and his subsequent conclusion that plaintiff was not disabled. 18 The objective medical evidence confirms plaintiff’s obesity, fibromyalgia, diabetes, 19 degenerative disc disease, arthritis, and fracture of her right hand. See, e.g., AR at 298-301, 20 302-05, 306-09, 316-17, 332-33, 343, 404, 410, 444-47, 517. The record also reflects 21 plaintiff’s frequent complaints of moderate to severe pain in her neck, arms, wrist, and legs. 22 See id. at 298-301, 302-05, 316-17, 492, 533, 551. Treatments for these conditions included 23 medication, dietary changes and weight management, physical therapy, use of a TENS unit, 24 hot/cold therapy, and chiropractic adjustments. See, e.g., id. at 298, 302, 484, 492, 526, 25 533, 551. 26 Plaintiff received her primary medical care from Dr. Clotfelder, who managed 27 plaintiff’s diabetes, hypertension, obesity, and fibromyalgia and provided preventative 28 care. Dr. Clotfelder’s progress notes reflect that plaintiff often complained of pain, 1 although findings on physical examination were mostly normal, including at visits during 2 which plaintiff was deemed “permanently disabled.” See, e.g., AR at 404, 425, 479, 492, 3 517, 529, 551. Dr. Clotfelder’s notes also indicate that plaintiff’s pain improved with 4 medication. See, e.g., AR at 396, 484, 530, 538, 551. 5 In March 2017, Dr. Clotfelder referred plaintiff to Dr. Adler, a pain management 6 specialist. See AR at 306. Dr. Adler assessed plaintiff as suffering from chronic pain caused 7 by fibromyalgia, diabetes mellitus with neuropathy, and cervical disc disorder. See id. at 8 309. He “discussed weight loss and exercise as important nonpharmacologic 9 interventions,” and prescribed Cymbalta. Id. Plaintiff reported that her symptoms improved 10 with the medication, and in September 2017 Dr. Adler concluded that plaintiff “displayed 11 overall an improvement in her functional outcome.” See id. at 298, 300, 302. 12 On October 15, 2017, plaintiff fell and fractured her right hand. See AR at 345, 360- 13 62. On October 26, 2017, Grant G. Seiden, M.D., performed surgery to repair the fractures 14 of the third and fourth metacarpal shaft of plaintiff’s right hand. See id. at 354-56. Dr. 15 Seiden continued to provide plaintiff with post-operative care. See id. at 332-39 (progress 16 notes from visits in October 2017, November 2017, December 2017, and March 2018). In 17 Dr. Seiden’s most recent progress note, dated March 12, 2018, he indicated that plaintiff 18 was “doing excellently.” AR at 333. Dr. Seiden stated at this final visit that plaintiff “[did] 19 not have any formal restrictions” related to her right hand. Id. 20 There is also evidence in the record of plaintiff’s daily activities, demonstrating that 21 despite her complaints she can do light housework, prepare meals, grocery shop, drive a 22 car, and climb stairs. See AR at 40, 49-52, 182-85. Plaintiff identified herself as her 23 mother’s “primary caregiver.” See AR at 537; id. at 40-41. Plaintiff testified she hired a 24 caregiver to assist with her mother’s needs in 2019, but continued to prepare meals for her 25 mother and to play games and go for walks with her. See id. at 41, 49. 26 The Court finds the foregoing is relevant and substantial evidence that is adequate 27 to support the ALJ’s determination that plaintiff’s subjective limitations were not 28 consistent with the objective medical evidence and plaintiff’s self-reported ability to | perform daily activities. See Ford, 950 F.3d at 1154. The Court further finds the ALJ’s 2 ||conclusion, based on the RFC, that plaintiff was not disabled is supported by substantial 3 || evidence. 4 ORDER 5 The “denial of disability benefits will be overturned only if it is not supported by 6 || substantial evidence, or if it is based on legal error.” Johnson v. Shalala,

, 7 || 1432 (9th Cir. 1996). Because the Court finds the ALJ applied the correct legal standards 8 his decision that plaintiff is not disabled 1s supported by substantial evidence, the final 9 || decision of the Commissioner of Social Security is AFFIRMED. The Clerk of the Court 10 enter judgment accordingly and terminate the case. 11 |} ITS SO ORDERED. 12 Dated: August 3, 2022 A /; ) 13 WU LA 14 Hori. Karen S. Crawford United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28