1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARY G.,1 Case No.: 21cv2135-LR

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

14 KILOLO KIJAKAZI, Acting [ECF NO. 22] Commissioner of Social Security, 15 Defendant. 16 17 18 On December 28, 2021, Mary G. (“Plaintiff”) filed a Complaint pursuant to 42

(g) seeking judicial review of a decision by the Commissioner of Social 20 Security (“Defendant”) denying Plaintiff’s application for social security disability 21 benefits and supplemental security income. (ECF No. 1.) Now pending before the Court 22 is the parties’ “Joint Stipulation” seeking judicial review (“Joint Motion”). (ECF No. 22 23 (“J. Mot.”).) For the reasons discussed below, the Court ORDERS that judgment be 24 25 26 27 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), the Court’s opinions in Social Security cases filed under

(g) “refer to any non-government parties by using only their first name and last initial.” 28 1 entered affirming the decision of the Commissioner pursuant to sentence four of 42

(g). 3 I. PROCEDURAL BACKGROUND 4 On April 26, 2018, Plaintiff filed an application for social security disability 5 benefits under Title II of the Social Security Act and supplemental security income 6 benefits under Title XVI of the Social Security Act, alleging disability beginning 7 October 1, 2017. (ECF No. 12 (“AR”)2 at 15, 76, 301.) After her application was denied 8 initially and upon reconsideration, (id. at 75–90, 92–107, 109–25, 127–43), Plaintiff 9 requested an administrative hearing before an administrative law judge (“ALJ”), (id. at 10 157). An administrative hearing was held on May 4, 2021.3 (Id. at 42–69.) Plaintiff 11 appeared at the hearing with counsel, and testimony was taken from her and a vocational 12 expert (“VE”). (Id.) 13 As reflected in his May 26, 2021 hearing decision, the ALJ found that Plaintiff had 14 not been under a disability, as defined in the Social Security Act, from October 1, 2017, 15 through the date of the decision. (Id. at 28.) The ALJ’s decision became the final 16 decision of the Commissioner on October 26, 2021, when the Appeals Council denied 17 Plaintiff’s request for review. (Id. at 1–5.) This timely civil action followed. (See ECF 18 No. 1.) 19 / / / 20 / / / 21 / / / 22

23 2 “AR” refers to the Administrative Record filed on May 17, 2022. (ECF No. 12.) The Court’s 24 citations to the AR in this Order are to the page numbers listed on the original document rather than the 25 page numbers designated by the Court’s Case Management/Electronic Case Filing System (“CM/ECF”). For all other documents, the Court’s citations are to the page numbers affixed by CM/ECF. 26 3 Plaintiff initially appeared for a hearing on January 7, 2020, but the hearing was continued so that 27 Plaintiff could obtain counsel. (See

, 70–74.) On August 11, 2020, Plaintiff appeared for the rescheduled hearing with counsel, but that hearing was continued to allow Plaintiff’s counsel to 28 1 II. SUMMARY OF THE ALJ’S FINDINGS 2 The ALJ followed the Commissioner’s five-step sequential evaluation process. 3 See

. At step one, the ALJ found that Plaintiff had not engaged in 4 substantial gainful activity since the application date. (AR at 18.) At step two, the ALJ 5 found that Plaintiff had the following severe impairments: history of psoriatic arthritis, 6 methicillin-sensitive staphylococcus aureus infection secondary to laminectomy, 7 laminectomy at L4–L5 and spinal fusion revision surgery, fibromyalgia, depression, and 8 anxiety. (Id.) At step three, the ALJ found that Plaintiff did not have an impairment or 9 combination of impairments that met or medically equaled the severity of one of the 10 impairments listed in the Commissioner’s Listing of Impairments. (Id. at 19.) 11 Next, the ALJ determined that Plaintiff had the residual functional capacity 12 (“RFC”) to do the following: 13 perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can lift and/or carry, push and/or pull, 20 pounds occasionally 14 and 10 pounds frequently; stand and/or walk 2-hours in an 8-hour day; sit for 15 6-hours in an 8-hour day with normal breaks; occasionally climb ramps and stairs; never climb ladders, ropes, and scaffolds; occasionally balance, stoop, 16 kneel, crouch, and crawl; and avoid concentrated exposure to extreme cold, 17 vibrations, and unprotected heights and dangerous moving machinery. In addition, the claimant is limited to understanding, remembering, and 18 carrying out simple, routine, repetitive tasks, with breaks every two hours; to 19 no interaction with the general public; and to occasional work-related, non- personal, non-social interaction with co-workers and supervisors involving 20 no more than a brief exchange of information or hand-off of product. The 21 claimant cannot perform fast paced work, and needs a low-stress environment where there are few work place changes. 22

23 (Id. at 21–22.) 24 At step four, the ALJ accepted and cited the VE’s testimony that Plaintiff is not 25 capable of performing her past relevant work as patient scheduler, loan clerk, and 26 customer service representative. (Id. at 26; see also

at 63–65.) Alternatively, at step 27 five, based on the VE’s testimony, the ALJ found that a hypothetical person with 28 Plaintiff’s RFC could perform the requirements of occupations that existed in significant 1 numbers in the national economy, such as document preparer/scanner, final assembler, 2 and table worker/inspector. (Id. at 27–28; see also

at 65–67.) The ALJ then found 3 that Plaintiff was not disabled. (Id. at 28.) 4 III. DISPUTED ISSUE 5 As reflected in the parties’ Joint Motion, Plaintiff is raising the following issue as 6 the ground for reversal and remand—whether the ALJ improperly rejected Plaintiff’s 7 testimony regarding pain and functional limitations. (J. Mot. at 5.) 8 IV. STANDARD OF REVIEW 9 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek 10 judicial review of the Commissioner’s final decision.

(g). The scope of 11 judicial review is limited, and the denial of benefits will not be disturbed if it is supported 12 by substantial evidence in the record and contains no legal error. See id.; Buck v. 13 Berryhill,

(9th Cir. 2017). “Substantial evidence means more than a 14 mere scintilla, but less than a preponderance. It means such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion.” Revels v. Berryhill, 16

(9th Cir. 2017) (quoting Desrosiers v. Sec’y Health & Hum. Servs., 17

(9th Cir. 1988)). In determining whether the Commissioner’s decision 18 is supported by substantial evidence, a reviewing court “must assess the entire record, 19 weighing the evidence both supporting and detracting from the agency’s conclusion,” 20 and “may not reweigh the evidence or substitute [its] judgment for that of the ALJ.” 21 Ahearn v. Saul,

(9th Cir. 2021). Where the evidence can be 22 interpreted in more than one way, the court must uphold the ALJ’s decision.

at 1115– 23 16; Attmore v. Colvin,

(9th Cir. 2016). The Court may consider “only 24 the reasons provided by the ALJ in the disability determination and may not affirm the 25 ALJ on a ground upon which [he or she] did not rely.” Revels,

(internal 26 quotation omitted). 27 / / / 28 / / / 1 V. DISCUSSION 2 Plaintiff argues that the ALJ improperly rejected her testimony regarding 3 subjective symptoms by failing to provide specific, clear and convincing reasons 4 supported by substantial evidence in the record. (J. Mot. at 6–13.) Specifically, Plaintiff 5 asserts that the ALJ did not provide clear and convincing reasons to discount her 6 testimony that she could not work because she has back pain, cannot stand or sit for long 7 periods of time, can only drive short distances, rarely cooks, and experiences anxiety and 8 panic attacks. (Id. at 10–11.) Plaintiff claims that the ALJ dismissed her testimony 9 regarding physical impairments by merely summarizing medical evidence, stating that 10 the impartments were not disabling, and by incorrectly concluding that the symptoms 11 have improved. (Id. at 11.) Plaintiff also asserts the ALJ dismissed her mental health 12 impairments as “not disabling,” which lacks the required specificity and inaccurately 13 describes the record. (Id. at 12.) Plaintiff therefore moves the Court to reverse the 14 Commissioner’s decision and remand the case for an award of benefits, or, in the 15 alternative, to remand the case to the Commissioner for further proceedings. (Id. at 21.) 16 Defendant argues that substantial evidence supported the ALJ’s finding that 17 Plaintiff’s testimony was not consistent with the “objective and treatment evidence of 18 record.” (Id. at 13, 20–21.) Defendant contends that the ALJ properly determined that 19 Plaintiff’s medical records indicated that her symptoms and impairments improved with 20 treatment, medications, and surgical intervention, and the records contradicted the alleged 21 severity of Plaintiff’s physical impairments. (Id. at 17–18.) Defendant also states that 22 the ALJ found that although Plaintiff’s mental health impairments were chronic, they 23 were not disabling because they were controllable. (Id. at 18.) Finally, Defendant 24 maintains that the ALJ considered and found persuasive the findings of the State Agency 25 psychiatric medical consultants Yanira Olaya, M.D. and Phaedra Caruso-Radin, Psy.D., 26 and psychiatric consultative examiner Jaganath Glassman, M.D. regarding Plaintiff’s 27 limitations, which were consistent with the limitations in the ALJ’s RFC determination. 28 1 (Id. at 19.) Defendant therefore asks the Court to affirm the ALJ’s findings, or, in the 2 alternative, remand case. (Id. at 13, 20–21.) 3 A. Applicable Law 4 The Ninth Circuit has established a two-part test for evaluating a claimant’s. 5 allegations regarding subjective symptoms. See Trevizo v. Berryhill,

, 678 6 (9th Cir. 2017); see also Social Security Ruling (“SSR”) 16-3p,4

7 (Mar. 16, 2016). First, the ALJ determines whether there is “objective medical evidence 8 of an underlying impairment that could reasonably be expected to produce the pain or 9 other symptoms alleged.” Trevizo,

(quoting Garrison v. Colvin, 759

, 1014–15 (9th Cir. 2014)). Second, if a claimant presented such evidence, and 11 there is no evidence of malingering, the ALJ may reject the claimant’s statements about 12 the severity of his or her symptoms “only by offering specific, clear and convincing 13 reasons for doing so.”

14 When evaluating subjective symptom testimony, “[g]eneral findings are 15 insufficient.” Brown-Hunter v. Colvin,

(9th Cir. 2015). “[A]n ALJ 16 does not provide specific, clear, and convincing reasons for rejecting a claimant’s 17 testimony by simply reciting the medical evidence in support of his or her residual 18 functional capacity determination.”

. Instead, the ALJ must identify the 19 testimony regarding the claimant’s symptoms that the ALJ finds not credible, and explain 20 what evidence undermines the claimant’s testimony. See Lambert v. Saul,

1266, 1277 (9th Cir. 2020) (citing Treichler, 775 F.3d at 1102); see also Burrell v. 22 Colvin,

(9th Cir. 2014) (finding error where the ALJ “never 23 connected the medical record” to the claimant’s testimony, and did not make “a specific 24

25 26 4 “[A]ssessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable 27 impairment(s) that could reasonably be expected to produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo,

28 1 finding linking a lack of medical records to [the claimant’s] testimony about the 2 intensity” of her symptoms); Orteza v. Shalala,

(9th Cir. 1995) 3 (providing that the ALJ’s reasons for discounting a claimant’s testimony must be 4 “sufficiently specific to permit the reviewing court to conclude that the ALJ did not 5 arbitrarily discount the claimant’s testimony”). 6 “Because symptoms sometimes suggest a greater severity of impairment than can 7 be shown by objective medical evidence alone,” the ALJ considers “all of the evidence 8 presented,” including information about the claimant’s prior work record, statements 9 about symptoms, evidence from medical sources, and observations by the Agency’s 10 employees and other individuals. See

(c)(3), 416.929(c)(3); SSR 11 16-3p,

. In addition, the ALJ may consider other factors, such as 12 Plaintiff’s daily activities; the location, duration, frequency, and intensity of their pain or 13 other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, 14 and side effects of any medication taken to alleviate pain; treatment; and any other 15 measures used to relieve pain. See

(c)(3), 416.929(c)(3); SSR 16- 16 3p,

. 17 B. Plaintiff’s Testimony During the Administrative Hearing and Medical 18 Records 19 1. Relevant testimony during Plaintiff’s administrative hearing 20 Plaintiff testified that she was forty-one years old at the time of the hearing and 21 that she stopped working because of “medical issues,” including back pain and arthritis, 22 and “[m]ultiple mental” issues. (AR at 47, 52.) Since 2017, Plaintiff symptoms have 23 worsened, she developed sciatic arthritis, and was diagnosed with spondylitis in her 24 spine. (Id.) In 2019, Plaintiff had a revision spinal surgery, and two weeks later, was 25 hospitalized for infection she developed after the surgery. (Id. at 57.) Plaintiff has not 26 worked since June 2017, and collected unemployment through January 2018. (Id. at 54.) 27 In 2017, Plaintiff spent two-to-three hours per day in bed, and her condition has 28 worsened overtime. (Id. at 47–48.) She “do[es not] do a lot of standing or sitting,” and is 1 most comfortable lying down because it does not strain her back. (Id. at 48.) Plaintiff 2 has more bad days than good days. (Id.) On a bad day, Plaintiff’s “[p]ain level is so high 3 that pain medication doesn’t even help [her] that much,” and she lies down and forces 4 herself to sleep to cope with pain. (Id. at 49.) On a typical day, Plaintiff gets up, lets her 5 pets out, goes back to bed, spends four-to-five hours in bed, and in the afternoon, lets her 6 pets out again. (Id. at 48.) 7 Plaintiff lives with her seventy-five year old father and does “minimal” chores. 8 (Id. at 49, 51–52.) At the time of the hearing, Plaintiff and her father were living in a 9 motel. (Id. at 51.) Plaintiff used to cook a lot, but stopped cooking after her 2019 spinal 10 fusion repair surgery. (Id. at 49.) Plaintiff leaves home once or twice per week, can 11 drive short distances, but cannot drive long distances because of pain. (Id. at 50.) She 12 occasionally uses a walker, but the walker was not prescribed by any physician; rather, 13 Plaintiff obtained the walker “because she knew [she] needed it.” (Id. at 58.) 14 With respect to her mental health symptoms, Plaintiff testified that she suffers from 15 depression and anxiety, which affect her ability to work. (Id. at 50.) Her “anxiety is 16 absolutely awful,” and she experiences “quite a few panic attacks and . . . anxiety-related 17 issues.” (Id.) Plaintiff sometimes has problems with attention. (Id.) She has been 18 receiving therapy and taking medications since 1987, and was hospitalized for a mental 19 health issue in 2013. (Id. at 58–59.) 20 2. Relevant medical records 21 Plaintiff’s May 12, 2017, lumbar spine X-ray revealed a “posterior fusion at L4–S1 22 with intervertebral body disc spacers.” (Id. at 464.) It also noted a “questionable fracture 23 of the most inferior left screw at the level of fusion at S1.” (Id.) 24 Plaintiff’s May 24, 2017, CT scan of the lumbar spine indicated that she was status 25 post L4–L5, surgical fusion, there was a “fracture through the mid-portion of the left S1 26 pedicle screw,” and “minimal angulation along the mid-portion of the right S1 pedicle 27 screw.” (Id.) The CT scan also revealed “[s]pinous process impingement . . . at L3–L4,” 28 and “[d]egenerative disc disease at L5–S1 with associated mild right and moderate left 1 L5-S1 with associated mild right and moderate left L5–S1 neural foraminal stenosis.” 2 (Id.) 3 Plaintiff’s March 18, 2019, CT of lumbar spine showed “stable postsurgical 4 changes compatible with posterior fusion of the L4–S1 vertebral bodies with interbody 5 disc spacer in place at the L4–L5 and L5–S1 levels.” (Id. at 617.) It also revealed 6 “[s]table fracture of the midportion of the left S1 pedicular screw,” and “[s]table 5 mm 7 right paracentral calcified fragment at the L5–S1 level and mild right and moderate left 8 neural foraminal stenosis secondary to inferior osteophyte encroachment.” (Id. at 618.) 9 On April 3, 2019, Plaintiff had a surgery for her lumbar pseudoarthrosis L4–5 and 10 L5–S1, lumbar radiculopathy, lumbar degenerative disc disease, and chronic pain. (Id. at 11 591.) The indication for the surgery was a “posterior PLIF fusion 6 years ago with 12 pseudoarthrosis with failed hardware noted posteriorly.” (Id. at 593.) 13 On April 22, 2019, Plaintiff was hospitalized because she developed an MSSA 14 infection at the left wound cite after her April 3, 2019 surgery. (Id. at 833.) The wound 15 was disinfected, and Plaintiff was discharged on April 26, 2019. (Id.) 16 On May 5, 2019, Dr. Paul Kim at the Spine Institute of San Diego noted that 17 Plaintiff reported that she “saw pain management and they put her back on BuTrans patch 18 and her back is feeling better already.” (Id. at 745.) He also noted that “[t]he patient is 19 doing very well” after the surgery. (Id. at 746.) 20 On May 20, 2019, Dr. Khalid at the Spine Institute of San Diego stated that 21 Plaintiff “is clinically doing better.” (Id. at 749.) Plaintiff was given prescription refill, 22 was seeing her pain management doctor, and was “making ‘progress.’” (Id.) On 23 June 17, 2019, Dr. Khalid noted that “[t]he patient is progressing well.” (Id. at 753.) On 24 August 4, 2019, he stated that Plaintiff’s “back symptoms have changed,” and her back 25 was “feeling better.” (Id. at 754–55.) 26 On September 1, 2019, Dr. Kim noted that Plaintiff “has turned the corner and is 27 doing excellent. She has 0/10 pain.” (Id. at 760; see also

.) He also stated that 28 Plaintiff “is very pleased with the results so far.” (Id. at 761.) 1 Plaintiff’s thoracic spine x-ray on October 8, 2020, showed “minimal scoliosis and 2 spondylosis.” (Id. at 1883). Her October 8, 2020, lumbar spine x-ray revealed “[s]table 3 examination with stable appearing postoperative changes from L4 through S1.” (Id.) 4 On December 3, 2020, Dr. Khalid noted that Plaintiff experienced low back pain, 5 which she “described as a moderate dull aching,” aggravated by bending, lifting, sitting, 6 and standing. (Id. at 1666.) He also noted that “[t]here has been no use of assistive 7 devices.” (Id.) 8 With respect to Plaintiff’s mental health impairments, Plaintiff’s June 7, 2018 9 Behavior Health Assessment noted that she experienced anxiety, depression, and grief 10 from her mother’s recent passing. (Id. at 552.) Plaintiff stated that she worried “about 11 various topics, but lately about finances and her father’s health.” (Id.) She reported that 12 she coped with anxiety with “high level of activity,” including cleaning and gardening. 13 (Id. at 552–53.) 14 On July 13, 2018, Dr. Glassman conducted a psychiatric disability evaluation of 15 Plaintiff. (Id. at 476–81.) Plaintiff reported being “anxious virtually all the time,” and 16 stated that her “feelings of depression come and go.” (Id. at 477.) Dr. Glassman noted 17 that Plaintiff’s “mood can be fine at times,” but she had a history of self-cutting and self- 18 picking on her face. (Id. at 477–78.) Plaintiff reported that she had difficulties with 19 sleep, did not have energy or motivation, showered once a week, but brushed her teeth 20 daily. (Id. a 478.) She did household chores when her pain was not too strong, enjoyed 21 reading, quilted, and tried to “stay busy.” (Id. at 479.) 22 Dr. Glassman’s mental status examination results noted that Plaintiff “did not 23 appear to be sad or down; more anxious, mildly agitated and irritated.” (Id.) He further 24 concluded the following: 25 From a psychiatric perspective, [Plaintiff] has moderate impairment in her capacity to get along adequately with others and to behave in socially- 26 appropriate manner. She is capable of understanding and following at least 27 simple instructions. She has moderate impairment in her capacity to 28 1 maintain concentration, persistence, and pace, and to adapt ion changed and stresses in a workplace setting. 2

3 She has not been in any consistent mental health treatment. Consistent treatment could help decrease her symports and improve her functioning. 4

5 (Id. at 480.) 6 October 17, 2018 progress note from Nurse Practitioner Sweeney lists the 7 following diagnoses: “Major depressive disorder, recurrent, unspecified,” “Generalized 8 anxiety disorder,” and “Anxiety disorder, unspecified.” (Id. at 722.) Plaintiff reported 9 that “[t]hings [we]re ok,” she had excess energy, and could not sit still. (Id.) She was 10 feeling hopeless, her mood was “low,” but her memory and cognition were intact, and 11 she displayed fair insight and judgment. (Id. at 722–23.) The note lists the medications 12 Plaintiff was prescribed, and states that she was taking those medications and denied any 13 side effects. (Id. at 720.) 14 November 21, 2018 progress note from Nurse Practitioner Sweeney lists the 15 following diagnoses: “Major depressive disorder, recurrent, unspecified,” “Generalized 16 anxiety disorder,” and “Anxiety disorder, unspecified.” (Id. at 719.) Plaintiff’s chief 17 complaint was “[t]he holidays are a little difficult, but trying to keep myself busy.” (Id.) 18 Plaintiff reported that her mood was “okay,” but she was “more angry due to holidays,” 19 and was planning to do “all the cooking for Thanksgiving.” (Id.) Plaintiff stated that she 20 slept 4–5 hours per night and denied napping throughout the day. (Id.) She reported 21 depression 7/10, but during the examination was “jovial, [and] laughed a lot at this visit 22 compared to previous visits.” (Id.) The progress note also states that Plaintiff “appears 23 less depressed than when first presenting to this clinic,” and Plaintiff reported that her 24 mood was “‘okay’ with congruent euthymic affect.” (Id. at 719–20.) The note lists 25 Plaintiff’s prescribed medications, and states that Plaintiff was taking those medications 26 and denied any side effects. (Id.) 27 March 22, 2019 Patient Visit Note from Physician Assistant Leon states that 28 Plaintiff’s standardized depression screening and screening for anxiety revealed “no 1 significant symptoms.” (Id. at 1397.) Further, when Plaintiff was asked “[h]ow often 2 [she was] feeling down, depressed or hopeless,” and “[h]ow often [she was] feeling 3 nervous, anxious or on edge,” she responded to both questions with “[n]ot at all.” (Id. at 4 1398.) 5 May 17, 2019 progress note from Psychiatrist Dr. Cann lists diagnoses for “Major 6 depressive disorder, recurrent, unspecified,” “Generalized anxiety disorder,” and 7 “Anxiety disorder, unspecified.” (Id. at 716.) Plaintiff reported that she was living with 8 her boyfriend and father, her father had medical problems, and she was her father’s 9 caretaker. (Id.) Plaintiff stated that “she was doing well but only getting 2–3 hours of 10 sleep at night,” and explained that she was anxious, in part, due to financial pressures. 11 (Id.) Her psychiatric examination revelated that she was alert, oriented, calm and 12 cooperative, had normal station and gait, and good eye contact, her behavior was 13 appropriate, she was not agitated, and her speech was normal. (Id. at 717.) Plaintiff’s 14 mood was depressed, affect was “dysphoric but appropriate and reactive,” and she denied 15 suicidal thoughts. (Id.) Plaintiff had linear thinking, no confusion, intact memory, and 16 fair judgement. (Id.) Plaintiff’s diagnosis was “Major Depressive Disorder, recurrent 17 moderate.” (Id.) 18 July 26, 2019 progress note from Dr. Cann lists the following diagnoses: “Major 19 depressive disorder, recurrent, unspecified,” and “Generalized anxiety disorder.” (Id. at 20 713.) Plaintiff stated that depression, anxiety, and insomnia were her “main problems,” 21 and that she was irritable without her prescribed medication. (Id.) The note also states 22 that “[t]oday, [Plaintiff] reports feeling OK.” (Id.) Plaintiff reported that “[p]art of [her] 23 pressure is financial and she is constantly worrying about that.” (Id.) Plaintiff’s 24 psychiatric examination revelated that she was alert, oriented, calm, cooperative, had 25 normal station and gait, and good eye contact. (Id. at 714.) Her behavior was 26 appropriate, she was not agitated, her mood was depressed, affect was “dysphoric but 27 appropriate and reactive,” she denied suicidal thoughts, and had “linear thinking, no 28 1 confusion, intact memory, and fair judgement.” (Id.) Plaintiff’s diagnosis was “Major 2 Depressive Disorder, recurrent moderate.” (Id.) 3 Plaintiff’s November 20, 2019 Behavior Health Assessment notes state that 4 Plaintiff had “anxious mood with congruent affect,” and reported that she had anxiety and 5 depression that occurred daily. (Id. at 1131.) Plaintiff described her depression as 6 “maybe a 5” on a scale of 1–10, and “reported that in the last year she experienced a 7 decrease in depressive [symptoms].” (Id.) 8 February 5, 2020 progress note from Dr. Cann lists diagnoses for “Major 9 depressive disorder, recurrent, unspecified,” “Generalized anxiety disorder,” and 10 “Factitial dermatitis.” (Id. at 1128.) Plaintiff had insomnia and anxiety. (Id.) She could 11 not identify a trigger, but stated that “not being financially stable was a problem,” and she 12 “was hoping to get SSI in January.” (Id.) Plaintiff was alert, oriented, calm, cooperative, 13 had normal station and gait, and good eye contact. (Id. at 1129.) Her behavior was 14 appropriate, speech was normal, mood was depressed, affect was “dysphoric but 15 appropriate and reactive,” she denied suicidal thoughts, and had “linear thinking, no 16 confusion, intact memory, and fair judgement.” (Id.) Plaintiff’s diagnosis was “Major 17 Depressive Disorder, recurrent moderate.” (Id.) 18 October 30, 2020 progress note from Psychiatrist Dr. Keri lists the following 19 diagnoses: “Major depressive disorder, recurrent, unspecified,” “Generalized anxiety 20 disorder,” and “Factitial dermatitis.” (Id. at 1125.) Plaintiff reported “7/10 severe 21 anxiety with daily panic,” insomnia with daytime sleepiness, “depressed mood without 22 suicidality,” and “fair concentration.” (Id.) Dr. Keri noted that “[Plaintiff] was hoping to 23 get SSI in January,” which was “a source of major stress.” (Id.) Plaintiff reported that 24 she remained in bed all day, but before her “flare up had been tending house though 25 constantly fel[l] behind on tasks.” (Id.) She further stated that she “[s]pends her time 26 watching tv with some enjoyment.” (Id.) Plaintiff also reported that she “take[s] care of 27 too many things for other people.” (Id. at 1125–26.) Her speech was normal, and mood 28 was “anxious” and “depressed,” she denied suicidal thoughts, and had “linear thinking, 1 no confusion, intact memory, and fair judgement.” (Id.) Plaintiff’s diagnosis was “Major 2 Depressive Disorder, recurrent moderate.” (Id.) 3 3. Analysis 4 The parties do not dispute the ALJ’s finding that Plaintiff has the following severe 5 impairments: history of psoriatic arthritis, methicillin-sensitive staphylococcus aureus 6 infection secondary to laminectomy, laminectomy at L4–L5 and spinal fusion revision 7 surgery, fibromyalgia, depression, and anxiety. (See AR at 18; see also J. Mot.) Further, 8 the parties do not contest the ALJ’s determination that Plaintiff’s “medically 9 determinable impairments could reasonably be expected to cause the alleged symptoms.” 10 (AR at 22.) Accordingly, the first prong of the ALJ’s inquiry regarding Plaintiff’s 11 subjective symptoms is satisfied. 12 Further, neither party alleges that the ALJ found that Plaintiff was malingering. 13 (See J. Mot.) The Court therefore is required to determine whether the ALJ identified 14 which of Plaintiff’s subjective allegations of impartment he discounted, and whether the 15 ALJ provided specific, clear, and convincing reasons for doing so. See Brown-Hunter, 16

; Lambert, 980 F.3d at 1277. 17 The ALJ stated the following in his written opinion: 18 The claimant underwent spinal fusion surgery in 2019; however, she still has back pain. She cannot stand or sit for long periods of time. She can 19 only drive short distances. She rarely cooks. The claimant testified she has 20 anxiety and panic attacks.

21

22 (AR at 22.) 23 The ALJ further stated that the “consistency of [Plaintiff’s] allegations regarding 24 the severity of her symptoms and limitations is diminished because those allegations are 25 greater than expected in light of the objective evidence of record.” (Id. at 24.) The ALJ 26 provided the following reasons for his conclusion: 27 [S]ince the lumbar revision surgery, the claimant’s back pain has shown improvement. On July 17, 2019, the claimant reported her back is feeling 28 1 better (Exh. 10F, at pg. 33). On December 3, 2020, the claimant still complained of low back pain with bending, lifting, sitting, and standing; 2 however, she no longer used assistive devices to ambulate (Exh. 21F, at pg. 3 7). A lumbar x-ray on October 8, 2020, showed stable post-operative changes in the lumbar spine (Exh. 22F, at pg. 126). A thoracic spine x-ray 4 on October 8, 2020, showed minimal scoliosis and spondylosis (Exh. 22F, at 5 pg. 124). The claimant also carries a diagnosis of fibromyalgia; however, as of April 22, 2019, it is controlled with medication (Exh. 12F, at pg. 15). 6 There is also minimal treatment records for the claimant’s fibromyalgia. 7 This contravenes the alleged severity of the claimant’s impairments. . . . . 8

9 [T]he claimant’s mental symptoms are chronic, but controllable. Despite constant feelings of anxiety and depression, she has consistently normal 10 mental status results (Exh. 9F, at pgs. 6, 9, 12, 15; 15F, at pgs. 2, 5). On 11 November 21, 2018, the claimant felt “OK” (Exh. 9F, at pg. 11). Moreover, as of October 30, 2020, the claimant watched television with enjoyment 12 (Exh. 15F, at pg. 1). This is inconsistent with the inability to concentrate at 13 least on a simple level. Moreover, the claimant testified she rarely cooks, drives, or does anything for herself. Yet on October 30, 2020, the claimant 14 reported to “taking care of too many things for too many people” (Exh. 15F, 15 at pg. 2). Having responsibility for many people is inconsistent with the reduced functionality the claimant alleges. Furthermore, on April 3, 2019, 16 the claimant denied ever having depressive or anxiety symptoms (Exh. 17F, 17 at pg. 186). In terms of her physical impairments, the claimant alleges she must use an assistive device to ambulate. However, there is no prescription 18 for the same in the medical record. Moreover, the record indicates as of at 19 least December 3, 2020, the claimant no longer used assistive devices to ambulate (Exh. 21F, at pg. 7). These inconsistencies undermine the 20 claimant’s allegations. 21 22 (Id. at 23–25.) 23 The Court can only assess the reasoning the ALJ provided in his decision. See 24 Revels, 874. F.3d at 654 (stating that a court may consider “only the reasons provided by 25 the ALJ in the disability determination and may not affirm the ALJ on a ground upon 26 which [he or she] did not rely”); Garrison, 759 F.3d at 1010 (same). The Court will 27 therefore examine the validity of the ALJ’s stated reasons for discounting Plaintiff’s 28 testimony. 1 a. Improvement of Plaintiff’s symptoms with treatment, medication, and 2 surgery 3 The ALJ discounted Plaintiff’s testimony regarding pain and physical limitations 4 because he found that after Plaintiff’s lumbar revision surgery, Plaintiff’s “back pain has 5 shown improvement.” (AR at 23.) The ALJ also concluded that Plaintiff’s fibromyalgia 6 was controlled with medication. (Id.) 7 In assessing a claimant’s subjective symptoms, an ALJ may properly consider the 8 “type, dosage, effectiveness, and side effects of any medication taken to alleviate pain,” 9 as well as “treatment, other than medication” the claimant receives or has received to 10 relieve “pain or other symptoms.” See

(c)(3)(iv)–(v), 11 416.929(c)(3)(iv)–(v); see also Wellington v. Berryhill,

(9th Cir. 2017) 12 (stating that “evidence of medical treatment successfully relieving symptoms can 13 undermine a claim of disability”); Warre v. Comm’r Soc. Sec. Admin.,

, 14 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are 15 not disabling for the purpose of determining eligibility for SSI benefits.”). Plaintiff 16 testified during her administrative hearing that she stopped working because of “medical 17 issues,” including back pain and arthritis. (Id. at 47, 52.) As noted above, on April 3, 18 2019, Plaintiff had spinal surgery. (Id. at 591.) The records the ALJ cited in his decision 19 show that three months after the surgery, Plaintiff reported that her back was feeling 20 better. (Id. at 757). Further, Plaintiff’s October 8, 2020 lumbar spine x-ray showed 21 “stable appearing postoperative changes from L4 through S1,” and her thoracic spine x- 22 ray on the same day showed “minimal scoliosis and spondylosis.” (Id. at 1881, 1883). 23 Numerous medical records containing reports from Plaintiff’s physicians documenting 24 improvements in her symptoms after the April 3, 2019 spinal surgery support the ALJ’s 25 conclusion. (See, e.g., id. at 749 (containing Dr. Khalid’s May 20, 2019 report that 26 Plaintiff was “clinically doing better” and “making ‘progress’”), id. at 754–55 27 (documenting Dr. Khalid’s June 17, 2019 finding that Plaintiff was “progressing well” 28 and her back was “feeling better”), id. at 760–61 (containing Dr. Kim’s September 1, 1 2019 report that Plaintiff “has turned the corner and is doing excellent. She has 0/10 2 pain”; also noting that Plaintiff “is very pleased with the results so far”).) Additionally, 3 as the ALJ pointed out in his written decision, Plaintiff’s medical records contain reports 4 that her psoriatic arthritis symptoms significantly improved when she was taking her 5 medication. (See id. at 1431–32, 1452 (documenting Plaintiff’s August 5, 2019 report 6 that she experienced 80% improvement when she takes her medication), id. at 1428 7 (containing October 14, 2019 progress note that Plaintiff “was previously partially 8 improved on methotrexate and then further improved once she was started on a TNFalpha 9 blocker”).) 10 Accordingly, the ALJ identified specific statements regarding Plaintiff’s symptoms 11 he was discounting, and explained why he found them not fully credible. See Guthrie v. 12 Kijakazi, No. 21-36023,

, at *1 (9th Cir. 2022) (finding that the ALJ 13 reasonably relied on evidence of plaintiff’s improvement with treatment to find that the 14 plaintiff’s symptom allegations were not entirely credible; reasoning that the ALJ 15 provided specific, clear and convincing reasons for discounting the plaintiff’s symptom 16 testimony); Bowen v. Kijakazi, No. 21-35600,

, at *1 (9th Cir. 2022) 17 (concluding that the ALJ properly discounted plaintiff’s testimony about her limitations 18 and symptoms, where the plaintiff told her medical care providers that she was “[d]oing 19 extremely well” and had “no complaints” after her surgery). The Court therefore finds 20 that the ALJ provided a specific, clear, and convincing reason to discount Plaintiff’s 21 symptom testimony. 22 b. Depression and anxiety symptoms 23 The ALJ discounted Plaintiff’ testimony regarding her mental symptoms, stating 24 that they were “chronic, but controllable.” (AR at 24.) The ALJ noted that “[d]espite 25 constant feelings of anxiety and depression, [Plaintiff] has consistently normal mental 26 27 28 1 status results,” on November 21, 2018, Plaintiff reported feeling “OK,” and on April 3, 2 2019,5 denied having depressive or anxiety symptoms. (Id. at 24–25.) 3 Plaintiff testified during the administrative hearing that she suffers from anxiety 4 and depression, which affect her ability to work, her “anxiety is absolutely awful,” and 5 she experiences “quite a few panic attacks and . . . anxiety-related issues.” (Id. at 50.) 6 The Court carefully examined the reasons the ALJ discussed in discounting Plaintiff’s 7 testimony and the medical records the ALJ cited in support of his conclusion. As the 8 ALJ stated in his written decision, Plaintiff’s mental status examination results were 9 within the norm. (See

; see also

, 719–20, 722–23, 1126, 1128–29, 10 1399.) Further, on November 21, 2018, Plaintiff reported that her mood was “okay,” but 11 she was “more angry due to holidays,” (id. at 719), and on March 22, 2019, Plaintiff 12 denied having depressive or anxiety symptoms, (id. at 1398). Additionally, when asked 13 on March 22, 2019, “[h]ow often [she was] feeling down, depressed or hopeless,” and 14 “[h]ow often [she was] feeling nervous, anxious or on edge,” Plaintiff responded with 15 “[n]ot at all.” (Id.) Plaintiff’s other medical records also document statements to medical 16 care providers regarding Plaintiff’s mental health impairments that are inconsistent with 17 her testimony during the administrative hearing. (See e.g.,

(containing Dr. 18 Glassman’s July 13, 2018 report that Plaintiff’s “feelings of depression come and go,” 19 and her “mood can be fine at times”),

(documenting Plaintiff’s report on 20 November 20, 2019, that her depression was “maybe a 5” on a scale of 1–10, and she 21 “reported that in the last year she experienced a decrease in depressive [symptoms]”).) 22 As such, Plaintiff’s reports to her medical care providers regarding her depression and 23 anxiety conflict with Plaintiff’s testimony during the administrative hearing that she 24 25 5 The Court notes that the Patient Visit Note is dated March 22, 2019. (AR at 1397, 1400.) The ALJ 26 cited April 3, 2019, the date of Plaintiff’s planned surgery for which she was undergoing screening. (See id.; see also

.) The planned surgery date is listed right above Plaintiff’s Behavioral Health 27 Screening responses at issue. (See

.) As such, a minor discrepancy in the date the ALJ cited appears to be a typo. 28 1 suffers from debilitating anxiety and depression. “When the evidence before the ALJ is 2 subject to more than one rational interpretation, [the Court] must defer to the ALJ’s 3 conclusion.” Batson v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2004) 4 (quoting Andrews, 53 F.3d at 1041); Ahearn, 988 F.3d at 1115–16 (same). 5 Accordingly, the ALJ identified Plaintiff’s specific statements regarding her 6 mental symptoms he found not credible, and explained what evidence undermined 7 Plaintiff’s testimony. Such identification constitutes a specific, clear, and convincing 8 reason to discount Plaintiff’s symptom testimony. 9 c. Daily Activities 10 The ALJ stated in his written decision that Plaintiff’s testimony that she rarely 11 cooks, drives, or does anything for herself is inconsistent with her October 30, 2020 12 report that she is “taking care of too many things for too many people,” because 13 “[h]aving responsibility for many people is inconsistent with the reduced functionality 14 [Plaintiff] alleges.” (AR at 24.) Additionally, the ALJ reasoned that Plaintiff’s report of 15 watching television with enjoyment is inconsistent with her alleged inability to 16 concentrate at least on a simple level. (Id.) 17 An ALJ may properly consider the claimant’s daily activities in evaluating 18 testimony regarding subjective pain. See

(c)(3)(i), 19 416.929(c)(3)(i). There are “two grounds for using daily activities to form the basis of an 20 adverse credibility determination”: an ALJ may find that daily activities either 21 (1) contradict the claimant’s other testimony, or (2) meet the threshold for transferable 22 work skills. Orn v. Astrue,

(9th Cir. 2007); see also Steele v. 23 Berryhill, Case No.: 3:17-cv-01923-LAB (RNB),

, at *3 (S.D. Cal. 24 June 6, 2018) (same). In this case, the ALJ is relying on the first ground. 25 Plaintiff testified during her administrative hearing that she does “minimal” chores, 26 rarely cooks, leaves home once or twice per week, and rarely drives. (AR at 49–50.) The 27 ALJ cited October 30, 2020 note from Plaintiff’s Psychiatrist Dr. Keri, documenting 28 Plaintiff’s report that she lived with her boyfriend and father, and was taking care of “too 1 many things for other people.” (Id.) Plaintiff’s testimony during the administrative 2 hearing regarding her daily activities is inconsistent with her report to Dr. Keri. The 3 testimony is also inconsistent with Plaintiff’s other reports to her medical care providers. 4 (See e.g.,

(containing June 27, 2018 report that Plaintiff “reiterated many times 5 feeling that she takes on other people[’]s problems,” and “does lots of work for others”), 6

(containing November 21, 2018 progress note that Plaintiff “will be doing all 7 the cooking for Thanksgiving”),

(containing May 17, 2019 progress note that 8 Plaintiff’s father has medical problems and “she is his caretaker”),

at 394–95, 401 9 (containing Plaintiff’s function report dated May 10, 2019, in which she stated that she 10 prepares breakfast every day and dinner “some nights,” takes care of pets, cooks and 11 grocery shops for her father, cleans, does laundry and yard work, and “sometimes” mops 12 the floors).) Additionally, Dr. Keri’s October 30, 2020 progress note states that Plaintiff 13 reported that she “[s]pends her time watching tv with some enjoyment.” (Id. at 1125.) 14 The note also contains Dr. Keri’s finding that Plaintiff had “fair concentration.” (Id.) 15 “When the evidence before the ALJ is subject to more than one rational interpretation, 16 [the Court] must defer to the ALJ’s conclusion.” Batson,

(quoting 17 Andrews, 53 F.3d at 1041); Ahearn, 988 F.3d at 1115–16 (same); see also Elizondo v. 18 Astrue, No. 1:09–cv–0989 SKO,

, at *5 (E.D. Cal. Aug. 31, 2010) 19 (“The mere fact of a claimant’s carrying on certain daily activities does not necessarily 20 detract from credibility as to overall disability”; however, a “negative inference is 21 permissible where the activities contradict the other testimony of the claimant[.]”). 22 Plaintiff’s testimony regarding her daily activities contained several internal 23 inconsistencies, and the ALJ rationally concluded that Plaintiff’s testimony regarding her 24 daily activities contradicted Plaintiff’s testimony regarding her level of functioning. See 25 Thomas v. Barnhart,

, 958–59 (9th Cir. 2002) (stating that an ALJ may 26 properly rely on inconsistencies between claimant’s testimony and claimant’s daily 27 activities); see also Scolari v. Kijakazi, Case No.: 21-cv-1250-BLM,

, 28 at *4–5 (S.D. Cal. Oct. 11, 2022) (finding that substantial evidence supported the ALJ’s 1 determination that plaintiff’s daily activities were not consistent with her subjective 2 testimony and claims, which was a clear and convincing reason to discount the plaintiff’s 3 subjective testimony and claims). The Court therefore finds that the ALJ provided a 4 legally sufficient reason to discount Plaintiff’s testimony. 5 d. Use of assistive device to ambulate 6 The ALJ stated in his written decision that although Plaintiff “alleges she must use 7 an assistive device to ambulate,” there is no prescription for the assistive device in the 8 medical record, and the record indicates that on December 3, 2020, Plaintiff no longer 9 used assistive devices to ambulate. (AR at 25.) Plaintiff testified during the 10 administrative hearing as follows: “I have a walker that I do use on occasion, more often 11 than not anymore, but that was actually something that I had gotten myself because I 12 knew I needed it.” (Id. at 58.) Having reviewed the transcript of Plaintiff’s testimony, 13 the Court notes that the ALJ mischaracterized Plaintiff’s testimony by stating that she 14 testified that she “must” use an assistive device to ambulate. (See

.) Rather, 15 Plaintiff testified that she occasionally uses a walker. (Id. at 58.) She also stated that the 16 walker was not prescribed by any physician and acknowledged that she obtained the 17 walker herself. (Id.) Accordingly, this reason cited by the ALJ is not clear and 18 convincing, and the Court disregards it. Nevertheless, as discussed above, the ALJ 19 provided several other clear and convincing reasons for discounting Plaintiff’s testimony 20 regarding her pain and functional limitations. See Scolari,

, at *4–5, 21 *8 (finding that the ALJ provided clear and convincing reasons for rejecting plaintiff’s 22 subjective symptom testimony, where the plaintiff’s testimony regarding her symptoms 23 was inconsistent with her activities of daily living, the nature of treatment, and her 24 progress and improvement); Heather C. v. Saul, Case No.: 3:19-cv-01669-AJB-RNB, 25

, at *6–8 (S.D. Cal. Mar. 10, 2020) (finding that the ALJ provided 26 clear and convincing reasons for rejecting plaintiff’s subjective symptom testimony 27 regarding her physical and mental impairments, where the plaintiff continuously engaged 28 1 a large number of activities of daily living, and her condition improved with treatment 2 medication). 3 The Court therefore finds that the ALJ provided clear and convincing reasons, 4 supported by the substantial evidence of record, for not fully crediting Plaintiffs 5 || subjective symptom testimony. Accordingly, the Court finds that reversal is not 6 || warranted based on the ALJ’s alleged failure to make a proper adverse credibility 7 || determination. 8 VI. CONCLUSION AND ORDER 9 For the reasons state above, the Court finds that the ALJ properly identified which 10 || of Plaintiff’s statements he discounted, and that the ALJ provided specific, clear, and 11 |}convincing reasons for doing so. The Court therefore ORDERS that judgment be 12 || entered affirming the decision of the Commissioner pursuant to sentence four of 42 13 || U.S.C. § 405(g) and dismissing this case. 14 IT IS SO ORDERED. 15 ||Dated: March 20, 2023 16 LY 17 Honorable Lupe Rodriguez, Jr. 13 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28