1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TANYA C.1, Case No.: 22-CV-653-SBC

12 Plaintiff, ORDER ON PLAINTIFF’S MOTION 13 v. FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION 14 KILOLO KIJAKAZI, FOR SUMMARY JUDGMENT Acting Commissioner of Social Security, 15

[ECF No. 9] 16

Defendant. 17

18 This Action arises from the Commissioner of Social Security’s (“Commissioner” or 19 “Defendant”) denial of Tanya C.’s (“Plaintiff”) application for disability insurance benefits 20 under Title II of the Social Security Act (“Act”). On October 14, 2022, Plaintiff submitted 21 a Motion for Summary Judgment, seeking review of the Commissioner’s final decision 22 denying Social Security benefits and requesting a remand for further administrative 23 proceedings. (Doc. No. 9). On November 18, 2022, Defendant filed a Cross-Motion for 24 25 26 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security 27 cases under

(g)] will refer to any non-government parties by using only their first name and last initial.” Civ. L.R. 7.1(e)(6)(b). 28 1 Summary Judgment. (Doc. No. 11). The issue presented is whether the Administrative Law 2 Judge (“ALJ”) erred in assessing the medical opinion of Stephen A. Genet, M.D. Having 3 reviewed and considered the Parties’ submissions and the entirety of the administrative 4 record (“AR”), the Court DENIES Plaintiff’s Motion for Summary Judgment and 5 GRANTS Defendant’s Motion for Summary Judgment. 6 I. PROCEDURAL HISTORY 7 On November 1, 2011, Plaintiff filed an application for disability insurance benefits, 8 asserting disability resulting from a stroke and brain hemorrhage with a disability onset 9 date of February 10, 2011. (AR 98, 124.) Plaintiff alleges her disabilities include 10 depression, panic attacks, and agoraphobia, which stem from the stroke and brain 11 hemorrhage she previously suffered. (AR 147.) On April 18, 2012, the Commissioner 12 denied Plaintiff’s initial application for disability insurance benefits. (AR 124.) On 13 December 17, 2012, the Commissioner denied Plaintiff’s request for reconsideration of its 14 initial denial. (Id.) On January 16, 2013, Plaintiff filed a written request for a hearing on 15 her disability insurance benefits application, which the Commissioner granted. (Id.). ALJ 16 James Carletti (“ALJ Carletti”) was appointed to Plaintiff’s administrative case and 17 presided over the hearing on February 28, 2014. (AR 94-119.) ALJ Carletti heard testimony 18 from Plaintiff, Nathan R. Strahl, M.D., Ph.D., an impartial medical expert (“Dr. Strahl”), 19 and Alan E. Cummings, a neutral vocational expert (“VE Cummings”). (Id.) On March 27, 20 2014, ALJ Carletti issued his Notice of Decision (“Decision”) and determined that Plaintiff 21 was disabled within the meaning of the Social Security Act due to the combined residual 22 effects from her stroke. (AR 140.) However, ALJ Carletti opined that Plaintiff was only 23 disabled for a short term between February 10, 2011, and June 1, 2012. (Id.) 24 On April 3, 2019, Plaintiff filed a subsequent Title II application for disability 25 insurance benefits, claiming disability beginning on June 28, 2019. (AR 24.) On June 28, 26 2019, the Commissioner denied Plaintiff’s initial application (AR 185.) On August 30, 27 2019, the Commissioner denied Plaintiff’s request for reconsideration. (AR 190-91.) On 28 September 7, 2019, Plaintiff submitted a written request for an administrative hearing. (AR 1 197.) On October 1, 2020, a telephonic hearing was held. (AR 216.) ALJ Andrew Verne 2 (“ALJ Verne”) heard testimony from Plaintiff and Erin M. Welsh, an impartial vocational 3 expert (“VE Welsh”). (AR 63-91.) 4 On February 2, 2021, ALJ Verne presided over a supplemental telephonic hearing. 5 (AR 279.) ALJ Verne heard testimony from Dr. Genet, a neurosurgeon and an impartial 6 medical expert, (“Dr. Genet”) and Kimberly S. Mullinax, an impartial vocational expert 7 (“VE Mullinax”). (AR 47-62.) On March 22, 2021, ALJ Verne issued his Notice of 8 Decision (“Decision”), concluding Plaintiff was not disabled within the meaning of the 9 Social Security Act and denying an award of disability insurance benefits. (AR 40.) On 10 May 13, 2021, Plaintiff petitioned the Appeals Council to review ALJ Verne’s Decision. 11 (AR 302.) On September 9, 2022, the Appeals Council denied Plaintiff’s request for 12 review. (AR 1-4.) In doing so, the Appeals Council adopted ALJ Verne’s Decision as the 13 final decision of the Commissioner. See

(h). (Id.) On October 14, 2022, 14 having exhausted all administrative remedies, Plaintiff timely brought this Action, seeking 15 judicial review pursuant to Title

(g). (See ECF No. 1.) 16 II. FACTUAL BACKGROUND 17 a. Dr. Genet’s Medical Opinion 18 On February 2, 2021, Dr. Genet provided an impartial opinion regarding the 19 Plaintiff’s case. (AR 47-62.) Dr. Genet is a board-certified neurosurgeon trained in 20 neurology who uses neuropsychic techniques to diagnose mental health issues in clients. 21 (AR 1097-1098.) Importantly, Dr. Genet is not a psychologist or psychiatrist. (AR 53.) Dr. 22 Genet examined Plaintiff’s medical records and identified Plaintiff’s severe impairments 23 based on the following information in the administrative record.2 Specifically, Dr. Genet 24 25 26 2 Since 2011, Plaintiff has undergone medical examinations and received treatment from 27 many doctors. However, the issues in this case pertain only to Dr. Genet's medical opinion. Therefore, the Court will limit its discussion to Dr. Genet’s medical opinion for purposes 28 1 opined that six of Plaintiff’s severe impairments constituted a medical listing under 20 2 C.F.R. Section 404, Subpart P, App. 1, 11.04: (1) brain hemorrhage, (2) depressive and 3 anxiety disorder, (3) monoplegia of the right arm, (4) knee bursitis, (5) encephalomalacia 4 of the left frontal lobe, and (6) expressive aphasia. (AR 55-56.) 5 Dr. Genet explained that Plaintiff’s six severe impairments, when combined, were 6 equivalent to the weakness of two extremities, and Plaintiff’s condition had persisted from 7 the time of her stroke to the date of the administrative hearing. (Id.) Dr. Genet stated that 8 Plaintiff’s hemorrhage or “softening of the brain” led to both depressive and anxiety 9 disorders. (Id.) Dr. Genet further stated that these two impairments, combined with 10 Plaintiff’s monoplegia of her right arm and knee bursitis, would equal the weakness of two 11 extremities that “do not work as well as they should have.” (Id.) Dr. Genet added that the 12 encephalomalacia of Plaintiff’s left frontal lobe and expressive aphasia contributed to the 13 medical listing. (Id.) When ALJ Verne asked Dr. Genet to provide “any further comments” 14 beyond Dr. Genet’s reference to Plaintiff’s various diagnoses, Dr. Genet answered “No, I 15 don’t believe so.” (AR 60.) To that end, ALJ Verne followed up regarding Plaintiff’s 16 prognosis. (Id.) Dr. Genet opined that “If things like aphasia and the monoplegia of the arm 17 are present this long after the stroke, I think it can be considered permanent.” (Id.) Dr. 18 Genet did not further elaborate. 19 b. ALJ Verne’s Decision 20 In rendering his Decision, ALJ Verne followed the Commissioner’s five-step 21 sequential evaluation process governing disability insurance benefits applications. See 20

. At step one, ALJ Verne found that Plaintiff had not engaged in any 23 substantial gainful activity since June 18, 2018, Plaintiff’s alleged disability onset date. 24 (AR 28.) Prior to the onset of her alleged disability, Plaintiff worked full-time as a drug 25 and alcohol detox counselor. (AR 27.) At step two, ALJ Verne determined that Plaintiff 26 suffered from the following severe impairments: 27 / / / 28 / / / 1 “[S]tatus post brain hemorrhage/cerebrovascular accident with residual including mild right hemiparesis, expressive aphasia, hypertension, 2 non-epileptic seizure-like activity, depression otherwise not specified, 3 anxiety, right hip pain, nicotine dependence, inactive anorexia, cognitive disorder not otherwise specified, panic with agoraphobia, 4 opioid dependence, and alcohol abuse.” 5 (AR 28 [citing (20 CFR 404.1520(c))].) 6 ALJ Verne also found that Plaintiff had non-severe impairments of left knee bursitis 7 and obesity. (Id.) As to her left knee bursitis, ALJ Verne determined that Plaintiff’s 8 condition was non-severe because it only caused “[a] slight abnormality that would have 9 no more than a minimal effect on her ability to work… [and] this condition was being 10 managed medically and should be amenable to proper control by adherence to 11 recommended medical management and medication compliance.” (AR 28.) Additionally, 12 ALJ Verne determined Plaintiff’s obesity was non-severe after evaluating all potential 13 functional limitations and symptoms impacting Plaintiff’s physical and mental ability to 14 perform basic work activities. (Id.) 15 At step three, ALJ Verne found that Plaintiff did not have an impairment or 16 combination of impairments that met or medically equaled the severity of one of the listed 17 impairments in the Commissioner’s listing of impairments. (AR 29.) As to Plaintiff’s 18 mental impairments, ALJ Verne noted only moderate limitations in (1) understanding, 19 remembering, or applying information; (2) interacting with others; (3) concentrating, 20 persisting, or maintaining pace; and (4) and adapting or managing oneself. (Id.) ALJ Verne 21 added that the objective medical evidence showed Plaintiff could exercise, take care of her 22 personal hygiene, and perform other activities of daily living without issue. (Id.) Lastly, 23 ALJ Verne noted that Plaintiff’s mental status examinations taken by numerous mental 24 healthcare providers showed minimal cognitive deficit and that, as of November 12, 2020, 25 she “could do serial 7 [mental assessments] accurately and interpret proverbs.” (Id.) In 26 finding that Plaintiff did not meet the criteria of a listed impairment, ALJ Verne next 27 28 1 determined Plaintiff’s residual functional capacity (“RFC”), constituting Plaintiff’s ability 2 to do physical and mental work activities despite her purported impairments. (AR 30.) 3 At step four, ALJ Verne calculated Plaintiff’s RFC to assess whether she was able 4 to perform any past relevant work. (AR 39.) At step five, ALJ Verne’s evaluation examined 5 Plaintiff’s capacity to engage in other work by considering factors such as Plaintiff’s RFC, 6 age, education, and work experience. (AR 39-40.) ALJ Verne ultimately determined that 7 Plaintiff could not perform her past relevant work; however, Plaintiff’s age, education, 8 work experience, and RFC demonstrated that Plaintiff was still capable of performing 9 certain jobs that existed in the national economy. (AR 39.) In so opining, ALJ Verne 10 accepted the testimony of VE Mullinax, who found that Plaintiff could perform three jobs 11 from the Dictionary of Occupational Titles (“DOT”), namely Mail Clerk (DOT 209.687- 12 026), Routing Clerk (DOT 222.687-022), and Merchandise Maker (DOT 209-587-034). 13 (AR 40.) 14 In reaching his determination of non-disability, ALJ Verne found Plaintiff possessed 15 the RFC to perform light work as defined in 20 C.F.R. section 404.1567(c), with the 16 following limitations: 17 [U]nderstanding, remembering, and carrying out simple, routine, repetitive tasks, with breaks every two hours, to no interaction with the 18 general public, and to occasional work-related, non-personal, non- 19 social interaction with co-workers and supervisors involving no more than a brief exchange of information or hand-off of product. She cannot 20 perform highly time-pressured tasks such that the claimant is limited to 21 generally goal-oriented work, not time sensitive strict production quotas (that is, production rate pace work with strict by the minute or 22 by the hour production quotas that are frequently and/or constantly 23 monitored by supervisors or that are fast paced) in low-stress environment[s’ where there are few workplace changes (i.e., the 24 claimant would not have to switch from task to task) and the claimant 25 has minimal decision-making capability.

26 (AR 30.) 27 / / / 28 / / / 1 In calculating Plaintiff’s RFC, ALJ Verne considered “[A]ll symptoms and the 2 extent to which these symptoms c[ould] reasonably be accepted as consistent with the 3 objective medical evidence and other evidence, based on the requirements of 20 CFR 4 404.1529 and SSR 16-3p.” (AR 31.) ALJ Verne also considered the medical opinions and 5 administrative findings in the administrative record. (Id.) Based upon those materials and 6 testimony from Plaintiff’s administrative hearing, ALJ Verne concluded that Plaintiff was 7 not disabled within the meaning of the Social Security Act from June 18, 2018, through 8 the date of his Decision. (AR 41.) 9 III. LEGAL STANDARD 10 Section 405(g) of the Social Security Act (“Section 405(g)”) permits a claimant who 11 has received an adverse final decision from the Commissioner to appeal such decision 12 through judicial review.

(g). The ALJ's decision denying the disability 13 insurance benefits should only be reversed if that decision is not supported by substantial 14 evidence or it is based upon harmful legal error. Tidwell v. Apfel,

(9th 15 Cir. 1998). “Substantial evidence means more than a mere scintilla, but less than a 16 preponderance; it is such relevant evidence as a reasonable person might accept as adequate 17 to support a conclusion.” Lingenfelter v. Astrue,

(9th Cir. 2007). “If 18 the evidence can reasonably support either affirming or reversing a decision, the court may 19 not substitute its judgment for that of the Commissioner.”

“The ALJ is responsible for 20 determining credibility, resolving conflicts in medical testimony, and for resolving 21 ambiguities.” Andrews v. Shalala,

(9th Cir. 1995). A reviewing court 22 must consider the entire record as a whole, weighing both the evidence that supports and 23 the evidence that detracts from the ALJ’s conclusion.” Reddick v. Chater,

, 24 720 (9th Cir. 2014). If the record would support more than one rational conclusion, the 25 reviewing court must defer to the ALJ’s decision. Andrews,

; see also 26 Mayes v. Massanari,

(9th Cir. 2001). 27 / / / 28 / / / 1 IV. DISCUSSION 2 The sole issue before the Court is whether ALJ Verne’s Decision is supported by 3 substantial evidence specifically as to when ALJ Verne rejected Dr. Genet’s medical 4 opinion for its lack of credibility. Plaintiff argues ALJ Verne made a harmful error when 5 he purportedly failed to provide clear and convincing reasons for his assessment of Dr. 6 Genet’s medical opinion. The Commissioner wholly disputes Plaintiff’s position. Having 7 reviewed the Parties’ moving papers and the entirety of the administrative record, the Court 8 agrees with the Commissioner and explains below. 9 The Ninth Circuit has established that an ALJ’s decision to discredit a medical 10 opinion must “simply be supported by substantial evidence.”3 See Woods v. Kijakazi, 32

, 787 (9th Cir. 2022). Consequently, the ALJ is no longer obligated to assign 12 specific evidentiary weight, even controlling weight, to any medical opinions, inclusive of 13 a treating physician’s opinion.

.1520c. Rather, the ALJ is required to 14 analyze the “persuasiveness” of each medical opinion, under a five-factor framework,4 with 15 the most critical factors being supportability and consistency.

§§ 404.1520c(b)(2), 16 (c)(1)-(5). Supportability refers to the degree to which a medical opinion is bolstered by 17 “relevant objective medical evidence” and “supporting explanations from other medical 18 sources.” Id. § 404.1520c(c)(1). Consistency refers to how closely a medical opinion aligns 19 with “other medical sources and non-medical sources” in the claim. Id. § 404.1520c(c)(2). 20 / / / 21

22 23 3 Woods superseded prior legal authority, which required the ALJ to provide varying levels of reasoning when evaluating medical opinions according to the hierarchy of medical 24 opinions. Woods, 32 F.4th at 787. However, post-Woods, all claims filed on or after March 25 17, 2017, must now undergo an analysis based on the Commissioner’s revised regulations, which do not assign special weight to a medical opinion merely based upon a medical 26 expert’s relationship to a claimant. Id. 27 4 Along with supportability and consistency, an ALJ should also consider “the doctor’s relationship with claimant,” the “specialization of the medical source,” and any other 28 1 Due to the significance of these two factors, the ALJ must provide an explanation of 2 how they assessed the supportability and consistency of the medical opinions that inform 3 their decision. § 404.1520c(b)(2). See also Gerardo v. Kijakazi,

90032, at *26-27 (S.D. Cal. Mar. 20, 2023) (emphasizing that despite the ALJ’s analysis 5 of a medical opinion being “brief,” supportability and consistency were properly 6 considered under the new framework); Kitchen v. Kijakazi,

(9th Cir. 7 2023) (upholding the ALJ’s discounting of a medical opinion because the doctor’s 8 assessment of severe limitations was inconsistent and unsupported by the medical record);

F.4th at 783 (affirming the ALJ’s rejection of a medical opinion based on 10 inconsistency with the overall treatment notes and mental status exams in the record). The 11 Court applies the two factors to ALJ Verne’s assessment of Dr. Genet’s opinion, beginning 12 with the supportability factor. 13 1. Supportability 14 Plaintiff argues that ALJ Verne committed harmful error when he found Dr. Genet’s 15 medical opinion to be unpersuasive. In his Decision, ALJ Verne explained he discounted 16 Dr. Genet’s opinion due to a lack of supporting objective medical evidence and 17 inconsistencies with evidence from both medical and non-medical sources. (AR 37.) In 18 particular, ALJ Verne stated in his Decision: 19 [Dr. Genet’s] opinion [wa]s not supported by relevant objective medical evidence, inconsistent with evidence from other medical and nonmedical 20 sources, and contradicted by other factors . . . First, a supportable explanation 21 was not provided because there were insufficient references to medically acceptable objective clinical or diagnostic findings. Second, the objective 22 medical evidence, including conservative and standard diagnostic and clinical 23 findings, d[id] not support the assessments. Indeed, as detailed above, the claimant’s neurological examinations were generally normal or showed only 24 mild findings. Third, the medical opinion [wa]s inconsistent with the 25 claimant’s admitted activities of daily living, which ha[d] already been described above in this decision. Performance of this wide range of ordinary 26 tasks is inconsistent with severe limitations and casts doubts on this opinion. 27 28 (AR 37.) 1 Regarding Plaintiff’s physical impairments, ALJ Verne observed that Plaintiff’s 2 “neurological examinations were generally normal or showed only mild findings,” 3 including a November 11, 2019, MRI, which showed “no acute abnormalities, no 4 significant interval change, shows encephalomalacia, etc.” and “no significant change.” 5 (AR 57-58, 756.) In his Decision, ALJ Verne elaborated that, with regard to Plaintiff’s 6 physical impairments, including those stemming from her past brain hemorrhage, the 7 evidence indicated normal sensory and motor function, an absence of focal deficits, and 8 typical coordination in neurological examinations. (AR 1077, 1087.) Further, ALJ Verne 9 noted that, on October 31, 2019, a neurologist concluded Plaintiff had “fully recovered 10 from her 2011 aneurysm,” despite mild expressive aphasia and some lingering difficulty 11 with word-finding. (AR 1088.) Additionally, ALJ Verne pointed out that examination 12 results in December 2019 showed no abnormalities in Plaintiff’s brain stem and 13 cerebellum. (AR 1086.) Further, August 7, 2020, examination results of Plaintiff’s left knee 14 showed no left joint effusion, no acute fracture or dislocation, and mild lateral 15 patellofemoral compartment arthritis bilaterally showed no injury. (AR 754.) On August 16 10, 2020, at a follow-up exam, Plaintiff’s treating physician, Dr. Belen Clark, M.D., (“Dr. 17 Clark”) noted that Plaintiff had left knee bursitis. (AR 746.) In doing so, Dr. Clark 18 categorized Plaintiff’s expressive aphasia as “not chronic.” (AR 762.) Based on such 19 records, ALJ Verne found Plaintiff’s impairments did not constitute severe impairments, 20 which was the basis for his decision to discount Dr. Genet’s medical opinion. 21 To that end, Dr. Genet’s medical opinion was not anchored in evidentiary citations 22 that explained his respective conclusions that Plaintiff presented with severe impairments 23 and such impairments equated to a Social Security listing. Instead, Dr. Genet cited to 24 Plaintiff’s medical records to confirm Plaintiff’s various diagnoses and, from there, offered 25 his conclusion regarding what Social Security listing would apply to Plaintiff’s case in light 26 of her various medical conditions. At the administrative hearing, ALJ Verne raised the 27 matter of Plaintiff’s left knee bursitis with Dr. Genet and noted that Plaintiff’s examination 28 results showed “no injury” and were generally “unremarkable.” (AR 56-7, 751-54.) 1 Plaintiff argues that Dr. Genet misunderstood ALJ Verne during this portion of the 2 administrative hearing and, for such reason, Dr. Genet did not offer evidence to counter 3 ALJ Verne’s record citations. Assuming Plaintiff’s contention is true, the Court finds that 4 substantial evidence nonetheless underlies ALJ Verne’s Decision in light of his objective 5 evidentiary citations establishing Plaintiff’s left knee bursitis was “non-severe” and that no 6 aggressive treatment was recommended. Jensen v. Colvin,

, at *6 (S.D. 7 Cal. Aug. 29, 2016) (affirming ALJ’s finding of partial credibility and determination of 8 non-disability where the ALJ cited objective medical records establishing that “Plaintiff 9 was treated conservatively”). (AR 28, 771–90.) 10 Regarding her mental impairments, Plaintiff argues that ALJ Verne’s assessment of 11 her fatigue, depression, and anxiety was inadequate because he discussed a combination of 12 positive and negative findings concerning these impairments. (AR 57-58.) Plaintiff 13 contends that Dr. Genet’s reliance on Plaintiff’s diagnoses and references to evidence of 14 her right arm monoplegia demonstrates that Dr. Genet’s medical opinion was properly 15 supported. The Court does not adopt Plaintiff’s conclusion, particularly because ALJ Verne 16 was responsible for considering the totality of the administrative record, rather than only 17 selected portions of the record. To that end, ALJ Verne cited Plaintiff’s mental status 18 examinations that largely revealed “normal” results, while concurrently crediting Plaintiff 19 with her diagnoses of major depressive disorder, anxiety disorder, and panic disorder with 20 agoraphobia. (AR 58, 610-716, 741.) 21 In contrast, Dr. Genet’s opinion did not cite to specific objective records in support 22 of his conclusion regarding what Social Security listing may apply to Plaintiff’s alleged 23 mental impairments. Further, ALJ Verne explained that, despite Plaintiff’s complaints of 24 fatigue and anxiety, her impairments were categorized as “amenable to treatment,” and her 25 psychological and psychiatric assessments generally revealed mild changes. (AR 613-14, 26 618-19, 623-24, 633, 650, 656.) Additionally, ALJ Verne emphasized that, on December 27 10, 2018, Plaintiff’s psychiatrist noted Plaintiff was “well managed on current medication,” 28 and that on May 21, 2019, she responded “well to therapeutic tools.” (AR 655, 614.) Lastly, 1 by April 14, 2020, it was noted Plaintiff was able to minimize stress and “was doing well.” 2 (AR 992.) 3 Taken together, ALJ Verne’s specific citations to objective medical records that 4 contradicted Dr. Genet’s medical opinion constitute substantial evidence to support ALJ 5 Verne’s ultimate determination of non-disability. Consistent with this conclusion, the 6 Court finds substantial evidence underlies ALJ Verne’s decision to discount Dr. Genet’s 7 medical opinion accordingly. See Ford v. Saul,

(9th Cir. 2020) 8 (explaining that an ALJ may reject a medical opinion based on inconsistencies in the 9 objective record); Woods, 32 F.4th at 792 (noting that an ALJ does not need to provide 10 “specific and legitimate” reasons for rejecting a treating or examining doctor’s opinion, but 11 instead can properly reject medical opinions by providing “an explanation supported by 12 substantial evidence”); Tommasetti v. Astrue,

(9th Cir. 2008) 13 (emphasizing that the ALJ is the “final arbiter with respect to resolving ambiguities in the 14 medical evidence” and can properly discount medical opinions by citing to inconsistencies 15 within the record.). Given the above, the Court holds that ALJ Verne properly assessed Dr. 16 Genet’s medical opinion when he “[set] out a detailed and thorough summary of the facts 17 and conflicting clinical evidence, stat[ed] his interpretation thereof, and ma[de] findings” 18 accordingly. Reddick, 157 F.3d at 725. In turn, the Court finds that ALJ Verne adequately 19 discussed the supportability factor in his Decision and appropriately concluded that Dr. 20 Genet’s medical opinion lacked supportability. The Court next addresses the consistency 21 factor underlying ALJ Verne’s assessment of Dr. Genet’s medical opinion. 22 2. Consistency 23 The Court next addresses whether ALJ Verne erred when he found Dr. Genet’s 24 medical opinion inconsistent with the record in Plaintiff’s administrative case. 25 Plaintiffasserts that ALJ Verne erred in basing his rejection of Dr. Genet’s testimony on 26 Plaintiff’s daily activities. (AR 34.) To support her position, Plaintiff cites to a Social 27 Security Regulation indicating that the Commissioner does not “generally consider 28 activities or hobbies to be indicative of the ability to work on a regular and continuous 1 basis.”

(c). By doing so, Plaintiff suggests that her daily life activities 2 are not relevant to the matter before the Court. From there, Plaintiff concludes that her 3 testimony regarding the symptoms of her impairments is consistent with Dr. Genet’s 4 testimony that, when combined, her impairments equal the criteria for a medical listing 5 under 20 C.F.R. Part 404, Subpart P, Appendix 1. 6 The Commissioner counters that “the key question is not whether there is substantial 7 evidence that could support a finding of disability, but whether there is substantial evidence 8 to support the Commissioner’s actual finding that claimant is not disabled.” James v. 9 Charter

, 1067 (9th Cir. 1997). As a fundamental matter, Ninth Circuit 10 authority supports the Commissioner’s characterization of the issue here. See generally 11 Tidwell v. Apfel,

(9th Cir. 1998); Lingenfelter v. Astrue,

(9th 12 Cir. 2007); Andrews v. Shalala,

(9th Cir. 1995). The Court’s analysis herein 13 conforms to such authority and examines whether substantial evidence underlies ALJ 14 Verne’s ultimate finding of non-disability, which encompasses the immediate issue of the 15 consistency of Dr. Genet’s medical opinion. 16 In evaluating the consistency between Dr. Genet’s testimony and various medical 17 and non-medical sources, ALJ Verne pointed to contradictions concerning Plaintiff’s daily 18 activities that Dr. Genet’s medical opinion did not address. (AR 37.) In his Decision, ALJ 19 Verne cited to his earlier reference to Plaintiff’s Third-Party Function Report, stating “[Dr. 20 Genet’s] medical opinion is inconsistent with the claimant’s admitted activities of daily 21 living....” (AR 37.) The Third-Party Function Report revealed that Plaintiff maintained a 22 range of daily life activities that undermined the reportedly severe restrictions Dr. Genet 23 found, with ALJ Verne commenting “the performance of this wide range of ordinary tasks 24 [wa]s inconsistent with severe limitations and casts doubt on [Dr. Genet’s] opinion.” (AR 25 38.) In his Decision, ALJ Verne specifically noted that Plaintiff was capable of driving 26 herself, managing her personal finances including paying her bills, and regularly visiting 27 her family members’ homes as well as a yoga studio, none of which Dr. Genet 28 acknowledged or accounted for in his medical opinion. (AR 38.) Further, Dr. Genet 1 generally referenced the Third Party Function Report in his medical opinion, but he did not 2 specifically cite to it in support of his functional limitations assessment. (AR 54.) 3 “When objective medical evidence is inconsistent with a claimant's subjective 4 testimony, an ALJ can reject the claimant’s testimony about the severity of [her] symptoms 5 only by offering specific, clear, and convincing reasons for doing so . . . ” See, e.g., Smartt 6 v. Kijakazi,

, 495 (9th Cir. 2022) (affirming ALJ’s finding of non-disability 7 where the medical records and opinions within the record contradicted plaintiff’s testimony 8 concerning her daily activities); Kitchen v. Kijakazi,

(highlighting that 9 ALJ’s denial of benefits was appropriate where the ALJ showed discrepancies between 10 statements about the “[i]ntensity, persistence, and limiting effects” of plaintiff’s symptoms 11 and the mild to moderate findings found in the medical evidence); Ford,

12 (upholding ALJ’s denial of benefits based on a conflict between the treating physician’s 13 opinion and the claimant’s activity level); Klaas v. Kijakazi,

105608, at *27-28 (S.D. Cal. Jun. 16, 2023) (finding that contradictory medical opinions, 15 inconsistent with plaintiff’s daily activities constituted evidence that supported the ALJ’s 16 denial of benefits). Such is the case here. 17 After considering the administrative record as a whole, ALJ Verne reasoned that 18 Plaintiff’s limitations were not as severe as Dr. Genet had characterized them. (See AR 28– 19 37.) ALJ Verne appropriately refrained from relying solely on Plaintiff’s daily life and 20 recreational activities when making this determination, although, as noted, such activities 21 contradicted the severe restrictions Dr. Genet attributed to Plaintiff’s impairments. See 22 Burch v. Barnhart,

, 680–81 (9th Cir. 2005) (affirming ALJ’s non-disability 23 finding in light of inconsistencies between plaintiff’s testimony and her daily life activities, 24 which included caring for her personal needs, cooking, cleaning, and shopping, and 25 explaining that “although the evidence of [plaintiff’s] daily activities may also admit of an 26 interpretation more favorable to [her], the ALJ's interpretation was rational, and ‘[w]e must 27 uphold the ALJ's decision where the evidence is susceptible to more than one rational 28 interpretation.’”) (citing Magallanes, 881 F.2d at 750.) 1 Instead, ALJ Verne emphasized the objective medical records that comprehensively 2 || addressed Plaintiff’s physical and mental impairments, as set forth above. (/d.) ALJ Verne 3 |}underscored how both Plaintiff's physical and mental impairments yielded nothing more 4 ||than mild to moderate objective findings. (AR 37.) For example, ALJ Verne pointed out 5 medical notations showing Plaintiff had “minimal cognitive defect.” (AR 937, 957-58, 6 966-67, 971-72, 976-77, 982-83, 987-88, 991-92, 997-98, 1014, 1018-19.) Consistent with 7 || this conclusion, ALJ Verne emphasized that Plaintiff was not subjected to any aggressive 8 ||treatment for either her physical or mental impairments. Stoval v. Kijakazi,

|| 8458749, at *9 (S.D. Cal. Dec. 5, 2023) (affirming ALJ’s non-disability finding and noting 10 || that plaintiff's conservative treatment history provided a clear and convincing reason for 11 |/discounting his subjective claims) (citing Smartt, 53 F.4th at 500 (finding conservative 12 || treatment as a basis for finding plaintiff's subjective symptom testimony inconsistent with 13 || objective medical evidence); Nash v. Astrue,

, at *9 (C.D. Cal. Dec. 21, 14 |}2012) (declining to “second guess” the ALJ's characterization as “routine conservative 15 || treatment.”). Ud.) In light of these circumstances, and a lack of objective evidentiary 16 |/citations to undo ALJ Verne’s assessment of Dr. Genet’s opinion, the Court finds no valid 17 || grounds to disturb ALJ Verne’s well-reasoned findings of inconsistency as to Dr. Genet’s 18 || medical opinion. 19 Vv. CONCLUSION 20 For the foregoing reasons, the Court DENIES Plaintiff's Motion for Summary 21 ||Judgment and GRANTS Defendant’s Motion for Summary Judgment. The Clerk of this 22 ||Court SHALL ENTER judgment in favor of Defendant and close this case accordingly. 23 IT IS SO ORDERED. 24 || Dated: February 7, 2024 2 Ag FG. 76 Hon. SteveB.Chu 27 United States Magistrate Judge 28