Pat v. Saul, No. 1:2020cv03040 - Document 24 (E.D. Wash. 2020)

Court Description: ORDER DENYING 21 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 22 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. File Closed. Signed by Magistrate Judge Mary K. Dimke. (TR, Case Administrator)

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Pat v. Saul Doc. 24 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Nov 12, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 MICHELLE P.,1 No. 1:20-cv-03040-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 14 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 21, 22 Before the Court are the parties’ cross-motions for summary judgment. ECF Nos. 21, 22. The parties consented to proceed before a magistrate judge. ECF No. 8. The Court, having reviewed the administrative record and the parties’ briefing, 15 16 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). ORDER - 1 Dockets.Justia.com 1 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 2 motion, ECF No. 21, and grants Defendant’s motion, ECF No. 22. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). 5 6 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 8 limited; the Commissioner’s decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 10 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 11 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 12 (quotation and citation omitted). Stated differently, substantial evidence equates to 13 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 14 citation omitted). In determining whether the standard has been satisfied, a 15 reviewing court must consider the entire record as a whole rather than searching 16 for supporting evidence in isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its 18 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 19 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 20 rational interpretation, [the court] must uphold the ALJ’s findings if they are ORDER - 2 1 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 2 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 3 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 4 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 5 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 6 decision generally bears the burden of establishing that it was harmed. Shinseki v. 7 Sanders, 556 U.S. 396, 409-10 (2009). 8 9 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 10 the meaning of the Social Security Act. First, the claimant must be “unable to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than twelve 14 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 15 “of such severity that he is not only unable to do his previous work[,] but cannot, 16 considering his age, education, and work experience, engage in any other kind of 17 substantial gainful work which exists in the national economy.” 42 U.S.C. § 18 423(d)(2)(A). 19 The Commissioner has established a five-step sequential analysis to 20 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § ORDER - 3 1 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 2 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 3 “substantial gainful activity,” the Commissioner must find that the claimant is not 4 disabled. 20 C.F.R. § 404.1520(b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 8 from “any impairment or combination of impairments which significantly limits 9 [his or her] physical or mental ability to do basic work activities,” the analysis 10 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 11 does not satisfy this severity threshold, however, the Commissioner must find that 12 the claimant is not disabled. Id. 13 At step three, the Commissioner compares the claimant’s impairment to 14 severe impairments recognized by the Commissioner to be so severe as to preclude 15 a person from engaging in substantial gainful activity. 20 C.F.R. § 16 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 17 enumerated impairments, the Commissioner must find the claimant disabled and 18 award benefits. 20 C.F.R. § 404.1520(d). 19 If the severity of the claimant’s impairment does not meet or exceed the 20 severity of the enumerated impairments, the Commissioner must pause to assess ORDER - 4 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 4 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 8 capable of performing past relevant work, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 10 performing such work, the analysis proceeds to step five. 11 At step five, the Commissioner considers whether, in view of the claimant’s 12 RFC, the claimant is capable of performing other work in the national economy. 13 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 14 must also consider vocational factors such as the claimant’s age, education, and 15 past work experience. Id. If the claimant is capable of adjusting to other work, the 16 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 17 404.1520(g)(1). If the claimant is not capable of adjusting to other work, analysis 18 concludes with a finding that the claimant is disabled and is therefore entitled to 19 benefits. Id. 20 ORDER - 5 1 The claimant bears the burden of proof at steps one through four above. 2 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 3 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 4 capable of performing other work; and 2) such work “exists in significant numbers 5 in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 6 386, 389 (9th Cir. 2012). 7 ALJ’S FINDINGS 8 On October 22, 2012, Plaintiff applied for Title II disability insurance 9 benefits alleging a disability onset date of June 4, 2012. Tr. 14, 92, 211-19. The 10 application was denied initially and on reconsideration. Tr. 112-14; Tr. 119-21. 11 Plaintiff appeared before an administrative law judge (ALJ) on June 12, 2014, but 12 she was unrepresented and requested time to obtain a representative. Tr. 33-47. 13 Plaintiff obtained a representative and again appeared before the ALJ on April 20, 14 2015. Tr. 48-91. On October 2, 2015, the ALJ denied Plaintiff’s claim. Tr. 11-29. 15 Plaintiff appealed the denial to the Appeals Council and then this Court, which 16 resulted in a remand. Tr. 799-816. Plaintiff appeared before an ALJ for a remand 17 hearing on January 7, 2020. Tr. 743-67. On January 24, 2020, the ALJ again 18 denied Plaintiff’s claim. Tr. 722-42. 19 At step one of the sequential evaluation process, the ALJ found Plaintiff, 20 who met the insured status requirements through June 30, 2016, did not engage in ORDER - 6 1 substantial gainful activity from June 4, 2012 through June 30, 2016. Tr. 727. At 2 step two, the ALJ found that Plaintiff has the following severe impairment: lumbar 3 spine spondylolisthesis. Tr. 728. 4 At step three, the ALJ found Plaintiff does not have an impairment or 5 combination of impairments that meets or medically equals the severity of a listed 6 impairment. Id. The ALJ then concluded that through the date last insured, 7 Plaintiff had the RFC to perform light work with the following limitations: 8 9 10 11 [Plaintiff could] stand in one place for one hour at a time for a total of six hours out of an 8-hour workday with normal breaks; she [could] walk for walk [sic] for two hours at a time for a total of six hours out of an 8-hour workday with normal breaks; and she [could] sit for one hour at a time out of an 8-hour workday with normal breaks. She [could] perform work that does not require 90 degree bending at the waist as an essential element of job; she [could] occasionally reach overhead; and she [could] occasionally stoop, kneel, crouch, and crawl. 12 Tr. 728-29. 13 At step four, the ALJ found Plaintiff was capable of performing her past 14 relevant work as a cashier II and food sales clerk. Tr. 734. Alternatively, at step 15 five, the ALJ found that, considering Plaintiff’s age, education, work experience, 16 RFC, and testimony from the vocational expert, there were jobs that existed in 17 significant numbers in the national economy that Plaintiff could perform, such as 18 storage facility rental clerk, fast food worker, and marker. Tr. 735. Therefore, the 19 ALJ concluded Plaintiff was not under a disability, as defined in the Social 20 ORDER - 7 1 Security Act, from the alleged onset date of June 4, 2012, through the date last 2 insured. Tr. 736. 3 Per 20 C.F.R. § 404.984, the ALJ’s decision following this Court’s prior 4 remand became the Commissioner’s final decision for purposes of judicial review. 5 6 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 7 her disability insurance benefits under Title II of the Social Security Act. Plaintiff 8 raises the following issues for review: 9 1. Whether the ALJ properly evaluated the medical opinion evidence; 10 2. Whether the ALJ conducted a proper step-three analysis; 11 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 12 4. Whether the ALJ properly evaluated lay witness evidence. 13 ECF No. 21 at 2. 14 15 16 DISCUSSION A. Medical Opinion Evidence Plaintiff contends the ALJ improperly evaluated the opinions of Anthony 17 Sciascia, M.D.; Karen LaJambe, ARNP; John Howe, M.D.; Christina Blanchette, 18 PA-C; Randall Chestnut, M.D.; Robert Hander, M.D.; William Pace III, M.D.; and 19 Rox Burkett, M.D. ECF No. 21 at 5-14. 20 ORDER - 8 1 There are three types of physicians: “(1) those who treat the claimant 2 (treating physicians); (2) those who examine but do not treat the claimant 3 (examining physicians); and (3) those who neither examine nor treat the claimant 4 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 5 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 6 Generally, a treating physician’s opinion carries more weight than an examining 7 physician’s, and an examining physician’s opinion carries more weight than a 8 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 9 to opinions that are explained than to those that are not, and to the opinions of 10 specialists concerning matters relating to their specialty over that of 11 nonspecialists.” Id. (citations omitted). 12 If a treating or examining physician’s opinion is uncontradicted, the ALJ 13 may reject it only by offering “clear and convincing reasons that are supported by 14 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 15 “However, the ALJ need not accept the opinion of any physician, including a 16 treating physician, if that opinion is brief, conclusory and inadequately supported 17 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 18 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 19 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 20 may only reject it by providing specific and legitimate reasons that are supported ORDER - 9 1 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 2 F.3d 821, 830-31 (9th Cir. 1995)). The opinion of a nonexamining physician may 3 serve as substantial evidence if it is supported by other independent evidence in the 4 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 5 “Only physicians and certain other qualified specialists are considered 6 ‘[a]cceptable medical sources.’” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 7 2014) (alteration in original); see 20 C.F.R. § 404.1513 (2013).2 However, an ALJ 8 is required to consider evidence from non-acceptable medical sources, such as 9 therapists. 20 C.F.R. § 404.1513(d) (2013).3 An ALJ may reject the opinion of a 10 non-acceptable medical source by giving reasons germane to the opinion. Ghanim, 11 763 F.3d at 1161. 12 13 14 15 2 The regulation that defines acceptable medical sources is found at 20 C.F.R. § 16 404.1502 for claims filed after March 27, 2017. The Court applies the regulation 17 in effect at the time the claim was filed. 18 3 The regulation that requires an ALJ’s consider opinions from non-acceptable 19 medical sources is found at 20 C.F.R. § 404.1502c for claims filed after March 27, 20 2017. The Court applies the regulation in effect at the time the claim was filed. ORDER - 10 1 1. Temporary Medical Opinions 2 Treating providers Dr. Sciascia, Ms. LaJambe, Dr. Howe, Ms. Blanchette, 3 and Dr. Chestnut, rendered opinions regarding Plaintiff’s functioning between June 4 2012 and September 2013. Tr. 335, 340-41, 344, 347, 352, 359, 361, 364, 373, 5 377, 411, 414, 461, 463, 476,493-95, 506, 508, 572. These opinions primarily 6 addressed temporary limitations, such as Dr. Sciascia’s June 4, 2012 opinion that 7 Plaintiff could not return to work for five to seven days, Tr. 411, and Ms. 8 LaJambe’s June 12, 2012 opinion that Plaintiff should be off work for one week, 9 Tr. 377. Through 2012, there are multiple opinions restricting Plaintiff to part-time 10 or no work. Tr. 335, 340-41, 344, 347, 352, 359, 361, 364, 373, 414, 463, 572. In 11 2013, there are several opinions and examinations that Plaintiff argues demonstrate 12 her inability to work. ECF No. 21 at 7 (citing Tr. 461, 476, 493, 506, 508). The 13 ALJ did not address any of the opinions. The ALJ must evaluate every medical 14 opinion received according to a list of factors set forth by the Social Security 15 Administration. 20 C.F.R. § 404.1527(c). “Where an ALJ does not explicitly 16 reject a medical opinion or set forth specific, legitimate reasons for crediting one 17 medical opinion over another, he errs.” Garrison v. Colvin, 759 F.3d 995, 1012 18 (9th Cir. 2014) (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). 19 The harmless error analysis may be applied where even a treating source’s opinion 20 is disregarded without comment. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. ORDER - 11 1 2015). An error is harmful unless the reviewing court “can confidently conclude 2 that no ALJ, when fully crediting the [evidence], could have reached a different 3 disability determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 4 (9th Cir. 2006). 5 Plaintiff argues the opinions in total cover more than a year and thus meet 6 the duration requirement. ECF No. 21 at 6-9. Temporary limitations are not 7 enough to meet the durational requirement for a finding of disability. 20 C.F.R. § 8 404.1505(a) (requiring a claimant’s impairment to be expected to last for a 9 continuous period of not less than twelve months); 42 U.S.C. § 423(d)(1)(A) 10 (same); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 11 2008) (affirming the ALJ’s finding that treating physicians' short-term excuse from 12 work was not indicative of “claimant’s long-term functioning”). However, in 13 January 2013, Dr. Chestnut and Ms. Blanchette opined Plaintiff could not return to 14 the job where Plaintiff had sustained an on-the-job injury, but noted Plaintiff had 15 made good progress and Dr. Chestnut would reassess Plaintiff’s return to work 16 plans at her three-month follow-up. Tr. 461. In April 2013, Dr. Chestnut 17 instructed Plaintiff to continue her home exercises, and stated her L4-L5 pathology 18 had stabilized, and she did not need to be seen for her fusion any further as it was 19 “quite satisfactory,” although she needed to mobilize her back so she can achieve a 20 reasonable range of motion. Tr. 476. Dr. Chestnut did not render an opinion on ORDER - 12 1 Plaintiff’s functioning at the April 203 visit. In June 2013, Ms. LaJambe noted Dr. 2 Chestnut found Plaintiff returning to work was premature until her lumbar muscles 3 and range of motion improved, Tr. 508, however it is unclear if this note is based 4 on a statement from Dr. Chestnut or Plaintiff to Ms. LaJambe, as Dr. Chestnut did 5 not include the statement in his notes. In July 2013, Ms. LaJambe opined Plaintiff 6 could return to work with “the above significant restrictions.” Tr. 506. The notes 7 above the statement indicate Plaintiff had steady incremental improvement in her 8 range of motion, she could perform light household tasks but had some limited 9 range of motion and chores caused some pain and fatigue, and she had reported 10 episodic leg tingling, stiffness, mild tenderness, and limitations in her range of 11 motion, but had a normal gait and sensation on examination. Tr. 507-08. There 12 are no additional limitations contained within the notes; as such, Ms. LaJambe’s 13 opinion appears to indicate Plaintiff could return to work despite her limitations 14 such as her limited range of motion. 15 In August 2013, Dr. Pace performed an independent medical examination 16 and opined Plaintiff had a category three back impairment,4 resulting in Plaintiff 17 18 4 A category three dorso-lumbar or lumbosacral impairment indicates the 19 individual has no more than a mild low back impairment, with mild continuous or 20 moderate intermittent objective clinical findings of the impairment but without ORDER - 13 1 being limited to sitting one hour at a time for a total of six hours in a day, standing 2 up to one hour at a time for a total of six hours in a day, walking up to two hours at 3 a time for a total of six hours in a day, lifting/carrying up to 50 pounds seldomly, 4 25 pounds occasionally, 20 pounds frequently, and 10 pounds continually, no 5 bending, and occasional squatting, kneeling, crawling, climbing, and reaching 6 above the shoulder, and he opined Plaintiff’s functioning may improve over time, 7 Tr. 713. Ms. LaJambe reviewed Dr. Pace’s opinion and concurred with his opinion 8 regarding Plaintiff’s limitations and the category three impairment finding, and 9 Plaintiff agreed the examination and rating was fair and accurate. Tr. 493-95. 10 The medical records do not support Plaintiff’s argument that the temporary 11 limitations totaled to a period of one year or longer. Dr. Chestnut’s April 2013 12 notes indicated Plaintiff did not need to be seen again and did not contain an 13 opinion regarding any limitations, Tr. 476, and by July 11, 2013, Ms. LaJambe 14 opined Plaintiff could return to work, Tr. 508. By September 2013, Dr. Pace 15 labeled Plaintiff’s back impairment only mild, and opined she was capable of full16 time work. Tr. 493-95. The opinions from June 4, 2012 through January 10, 2013 17 18 significant x-ray findings or significant objective moderate loss. Wash. Admin. 19 Code 296-20-280(3), Tr. 20. 20 ORDER - 14 1 indicate Plaintiff could not return to work, but Plaintiff doses not point to any 2 opinions from February 2013 through June 2013 that state Plaintiff could not work. 3 As such, any error in the ALJ failing to address the temporary opinions would be 4 harmless as the opinions do not meet the duration requirement. See Molina, 674 5 F.3d at 1115. Further, most of the temporary opinions were rendered prior to 6 Plaintiff’s October 2012 surgery, and as discussed herein, Plaintiff had 7 improvement in her symptoms after her surgery, which provides further evidence 8 the temporary limitations do not meet the duration requirement. 9 10 2. Dr. Hander On May 24, 2013, Dr. Hander, a State agency medical consultant, found 11 Plaintiff’s spine disorder and fracture of the vertebral column with spinal cord 12 lesion were severe impairments. Tr. 106. He projected that twelve months after 13 the alleged onset date Plaintiff would be capable of lifting 20 pounds occasionally 14 and 10 pounds frequently; standing/walking six hours in a day; sitting six hours in 15 a day; occasionally climbing ladders/ropes/scaffolds; frequently stooping and 16 crawling; and avoiding concentrated exposure to vibration and hazards. Tr. 10617 08. Dr. Hander noted Plaintiff had made satisfactory recovery from her spinal 18 surgery, and there is evidence “she is already capable of light work, less than 12 19 months after her alleged onset date.” Tr. 108. The ALJ gave Dr. Hander’s opinion 20 some weight. Tr. 731. As Dr. Hander is a nonexamining source, the ALJ must ORDER - 15 1 consider the opinion and whether it is consistent with other independent evidence 2 in the record. See 20 C.F.R. § 404.1527 (b),(c)(1); Tonapetyan v. Halter, 242 F.3d 3 1144, 1149 (9th Cir. 2001); Lester, 81 F.3d at 830-31. 4 The ALJ summarized Dr. Hander’s opinion as limiting Plaintiff to light 5 work with some postural and environmental limitations. Tr. 730. The ALJ found 6 Dr. Hander’s opinion was somewhat consistent with the longitudinal record, but 7 found the record supports somewhat greater limitations than those opined by Dr. 8 Hander. Id. Plaintiff argues Dr. Hander opined Plaintiff had disabling limitations 9 at the alleged onset date and was only projecting a light RFC 12 months after 10 onset. ECF No. 21 at 9. Plaintiff also argues the reconsideration notice contained 11 an opinion from Dr. Hander that Plaintiff was “presently unable to work” but she 12 would be able to perform light work by June 3, 2013, which was less than a year 13 after her alleged onset date. Id. (citing Tr. 119). While the RFC was a projection 14 of Plaintiff’s functioning one year after her alleged onset date, Dr. Hander opined 15 Plaintiff was already capable of light work as of the date of his opinion, May 24, 16 2013. Tr. 108. Further, the notice sent to Plaintiff was an explanation of the 17 decision; notices are prepared by disability examiners, not the medical consultants, 18 and as such the notice did not represent an opinion from Dr. Hander. See POMS 19 20 ORDER - 16 1 DI 24501.001. As Dr. Hander opined Plaintiff was capable of light work with 2 additional limitations, and the ALJ’s RFC is more restrictive than Dr. Hander’s 3 opinion, the ALJ did not reject Dr. Hander’s opinion. 4 3. Dr. Pace 5 On August 14, 2013, Dr. Pace, an independent medical examiner, examined 6 Plaintiff and rendered an opinion on her functioning. Tr. 700-15. Dr. Pace 7 diagnosed Plaintiff with lumbosacral strain and bilateral congenital spondylolysis 8 with grade one spondylolisthesis, status post posterior lumbar interbody fusion of 9 L4 to L5. Tr. 705. He opined Plaintiff had a category three back impairment, 10 resulting in Plaintiff being limited to sitting one hour at a time for a total of six 11 hours in a day, standing up to one hour at a time for a total of six hours in a day, 12 walking up to two hours at a time for a total of six hours in a day, lifting/carrying 13 up to 50 pounds seldomly, 25 pounds occasionally, 20 pounds frequently, and 10 14 pounds continually, no bending, and occasional squatting, kneeling, crawling, 15 climbing, and reaching above the shoulder, and he opined she was at maximum 16 improvement but her functioning may improve over time, Tr. 705, 713. Also in 17 August 2013, Dr. Pace opined Plaintiff cannot perform the bending described in 18 the convenience store cashier position; she cannot perform the bending or 19 repetitive reaching described in the house cleaner, home attendant, nor 20 housekeeper positions; she cannot perform the stooping, bending or twisting ORDER - 17 1 described in the laundry worker II position; and she could return to work as a 2 general officer clerk or teacher aide II. Tr. 707-15. The ALJ gave Dr. Pace’s 3 opinion significant weight. Tr. 731. As Dr. Pace’s opinion is contradicted by the 4 opinion of Dr. Hander, Tr. 106-08, the ALJ was required to give specific and 5 legitimate reasons, supported by substantial evidence, to reject Dr. Pace’s opinion. 6 See Bayliss, 427 F.3d at 1216. 7 The ALJ largely incorporated Dr. Pace’s opinion into the RFC, including 8 limiting Plaintiff to sitting and standing for one hour at a time and walking up to 9 two hours at a time, for a total of six hours each in a day. Tr. 728, 731. Plaintiff 10 contends Dr. Pace’s opinion amounts to finding Plaintiff required the ability to 11 change positions from sitting to standing at will, which Plaintiff argues is disabling 12 based on the testimony of the vocational expert at the 2015 hearing. ECF No. 21 at 13 11. However, while Dr. Pace opined Plaintiff could only sit or stand for one hour 14 at a time and walk for two hours at a time, Tr. 713, he did not opine Plaintiff needs 15 to change positions at will. Further, at the 2015 hearing, the ALJ asked the 16 vocational expert if an individual could perform Plaintiff’s past work if they 17 needed to change positions “at will,” and the expert responded there are a number 18 of jobs that allow for the option to alternate sitting and standing but not necessarily 19 “at will.” Tr. 84. The expert explained the teacher aide position would have ample 20 time to occasionally sit, stand, and walk but not necessarily at the individual’s ORDER - 18 1 discretion when they do each, Tr. 84, and similarly the cashier position may have 2 the option to sit or stand but there may be times standing is required and sitting at 3 will would not be possible, Tr. 85. The expert testified there are no light jobs that 4 have an at will sit/stand option, but multiple sedentary jobs have the sit/stand 5 option. Tr. 85-86. 6 At the 2020 hearing, the ALJ posed a hypothetical to the vocational expert 7 that included Dr. Pace’s opinion that Plaintiff is limited to standing one hour at a 8 time, sitting for one hour at a time, and walking for two hours at a time, each for a 9 total of six hours. Tr. 760-61. The ALJ explained the individual would need to 10 change positions after sitting one hour, standing one hour, or walking two hours. 11 Tr. 762. The vocational expert testified that an individual with such limitations 12 could perform Plaintiff’s past work as a cashier and sales clerk, and other 13 occupations such as storage facility clerk, fast food worker, and marker. Tr. 76214 63. 15 The hypothetical posed at the 2020 hearing uses the exact language set forth 16 in Dr. Pace’s opinion. Tr. 713, 760-61. The hypothetical posed at the 2015 17 hearing was more restrictive than Dr. Pace’s opinion, as Dr. Pace did not opine that 18 Plaintiff needs the ability to alternate positions at will. Tr. 82-83, 713. As such, 19 the ALJ did not reject Dr. Pace’s opinion regarding Plaintiff’s need to change 20 positions during a workday. Further, the ALJ reasonably relied on the testimony of ORDER - 19 1 the vocational expert at the 2020 hearing, and as such the ALJ’s step four and step 2 five findings are supported by substantial evidence. 3 4. Dr. Burkett 4 On December 14, 2015, Dr. Burkett, a nonexamining doctor, reviewed 5 Plaintiff’s medical records and provided an opinion on her functioning. Tr. 7196 21. Dr. Burkett found Plaintiff had antero-spondylolisthesis and compression of 7 the L4-L5. Tr. 719. He opined Plaintiff could sit for one to two hours in an eight8 hour day, and she is capable of a “less than sedentary RFC.” Tr. 710. Dr. Burkett 9 further opined Plaintiff is “close to equaling [Listing] 1.02 or 1.04,” and pointed to 10 Dr. Pace’s opinion that Plaintiff cannot bend to support his opinion that Plaintiff 11 cannot bend, twist, or forward flex, and as such she cannot work. Tr. 720-21 12 (citing Tr. 706). The ALJ gave Dr. Burkett’s opinion little weight. Tr. 732. As 13 Dr. Burkett is a nonexamining source, the ALJ must consider the opinion and 14 whether it is consistent with other independent evidence in the record. See 20 15 C.F.R. § 404.1527 (b),(c)(1); Tonapetyan, 242 F.3d at 1149; Lester, 81 F.3d at 16 830-31. 17 First, the ALJ found Dr. Burkett’s opinion was inconsistent with the 18 longitudinal record. Tr. 732. An ALJ may discredit physicians’ opinions that are 19 unsupported by the record as a whole. Batson v. Comm’r of Soc. Sec. Admin., 359 20 F.3d 1190, 1195 (9th Cir. 2004). The ALJ noted Dr. Burkett’s opinion that ORDER - 20 1 Plaintiff could not perform even sedentary work and never twist, bend, or forward 2 flex is out of proportion with the record, which contains physical examination 3 findings demonstrating normal gait, sensation, reflexes, neurological findings, and 4 balance, negative straight leg raises, generally benign findings, and evidence 5 Plaintiff improved after her surgery. Tr. 730, 732 (citing Tr. 468, 505, 509, 5556 56, 704-05, 966). Additionally, the ALJ noted that despite Dr. Burkett’s disabling 7 December 2015 opinion, Plaintiff did not seek treatment from December 2015 8 through July 2019, when Plaintiff had an examination that demonstrated no 9 weakness or joint pain and a normal gait. Id. (citing Tr. 966). While Plaintiff 10 offers her own interpretation of the evidence by citing to abnormal findings in the 11 record, ECF No. 21 at 12-13, the ALJ’s finding that Dr. Burkett’s opinion is 12 inconsistent with the longitudinal record is supported by substantial evidence. 13 Plaintiff also argues the ALJ erred in considering her lack of treatment from 14 December 2015 through July 2019 because she did not have funding to pay for 15 treatment, and did not want to see doctors for opiate medication. ECF No. 21 at 16 13-14. However, when Plaintiff was seen to establish care for the first time in 17 years in July 2019, the medical record lists only hypertension as an ongoing 18 medical issue, and while she reported back surgery in 2012, Plaintiff had a normal 19 physical examination and did not report any back pain or other 20 symptoms/limitations related to her back. Tr. 965-66. The ALJ reasonably found ORDER - 21 1 Plaintiff’s multi-year gap in treatment and subsequent normal physical examination 2 was inconsistent with Dr. Burkett’s opinion. 3 Second, the ALJ found Plaintiff’s activities of daily living were inconsistent 4 with Dr. Burkett’s opinion. Tr. 732. An ALJ may discount a medical source 5 opinion to the extent it conflicts with the claimant’s daily activities. Morgan v. 6 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). The ALJ noted 7 Plaintiff’s activities suggested greater functioning than accounted for in Dr. 8 Burkett’s opinion. Tr. 723. While Dr. Burkett opined Plaintiff could not perform 9 even sedentary work, and could not stand more than one to two hours in a day, 10 Plaintiff reported walking up to 80 minutes a day with only mild discomfort, 11 walking six miles without exacerbating her symptoms, exercising for 50 minutes at 12 a time, managing her wood stove, grocery shopping, light meal prepping, and 13 cleaning her home for up to one to two hours. Tr. 730 (citing Tr. 660, 661, 670-71, 14 693, 696-97). The ALJ’s finding that Dr. Burkett’s opinion is inconsistent with 15 Plaintiff’s activities of daily living is supported by substantial evidence. 16 Third, the ALJ found Dr. Burkett’s opinion contained inconsistencies. Tr. 17 732. Relevant factors to evaluating any medical opinion include the amount of 18 relevant evidence that supports the opinion, the quality of the explanation provided 19 in the opinion, and the consistency of the medical opinion with the record as a 20 whole. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, ORDER - 22 1 495 F.3d 625, 631 (9th Cir. 2007). While Dr. Burkett stated Dr. Pace refused to 2 opine on Plaintiff’s functional limitations, Tr. 721, the ALJ noted Dr. Pace did in 3 fact opine on Plaintiff’s functional limitations, Tr. 732. Dr. Burkett stated Dr. 4 Pace’s report is “key in this case,” and argued the report needed to be fully 5 considered. Tr. 721. However, Dr. Burkett opined that a “proper interpretation” of 6 Dr. Pace’s report would reduce Plaintiff’s RFC to sustaining no more than two to 7 four hours of sitting, which is a “less than sedentary” RFC. Tr. 720. Dr. Burkett’s 8 statement that Dr. Pace’s opinion equates to a less than sedentary RFC is 9 inconsistent with the evidence as Dr. Pace opined Plaintiff was capable of 10 performing light work, including sitting up to six hours per day, with additional 11 limitations, Tr. 713. While Dr. Burkett stated he could not think of any jobs 12 Plaintiff could perform with a less than sedentary RFC, Tr. 720, Dr. Pace opined 13 Plaintiff was capable of working as a general office clerk and teacher aide, Tr. 709, 14 711. Plaintiff concedes Dr. Burkett’s opinion contained internal inconsistencies, 15 but argues the inconsistencies should not detract from the opinion. ECF No. 21 at 16 14. As Dr. Burkett stated Dr. Pace’s opinion is the key to the case, yet Dr. 17 Burkett’s summary of Dr. Pace’s opinion is inconsistent with the evidence, the 18 ALJ reasonably rejected Dr. Burkett’s opinion because of the inconsistencies. 19 Lastly, the ALJ gave more weight to Dr. Pace’s opinion than Dr. Burkett’s 20 opinion. Tr. 732. An ALJ may choose to give more weight to an opinion that is ORDER - 23 1 more consistent with the evidence in the record. 20 C.F.R. § 404.1527(c)(4). 2 Generally, an ALJ should accord more weight to the opinion of an examining 3 physician than to that of a non-examining physician. See Andrews v. Shalala, 53 4 F.3d 1035, 1040-41 (9th Cir. 1995). The ALJ gave significant weight to the 5 opinion of Dr. Pace, who had the opportunity to examine Plaintiff. Tr. 731. The 6 ALJ found Dr. Pace’s opinion was generally consistent with the evidence. Id. The 7 ALJ reasonably gave more weight to Dr. Pace’s opinion than she gave to Dr. 8 Burkett, who did not examine Plaintiff, and whose opinion she found was 9 inconsistent with the evidence. Tr. 732. Plaintiff is not entitled to remand on these 10 grounds. 11 12 B. Step-Three Plaintiff contends the ALJ erred by finding that Plaintiff’s back impairment 13 did not meet or equal Listing 1.04A. ECF No. 21 at 14-15. At step three, the ALJ 14 must determine if a claimant’s impairments meet or equal a listed impairment. 20 15 C.F.R. § 404.1520(a)(4)(iii). The Listing of Impairments “describes each of the 16 major body systems impairments [which are considered] severe enough to prevent 17 an individual from doing any gainful activity, regardless of his or her age, 18 education or work experience.” 20 C.F.R. § 404.1525. “Listed impairments are 19 purposefully set at a high level of severity because ‘the listings were designed to 20 operate as a presumption of disability that makes further inquiry unnecessary.’ ” ORDER - 24 1 Kennedy v. Colvin, 758 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 2 493 U.S. 521, 532 (1990)). “Listed impairments set such strict standards because 3 they automatically end the five-step inquiry, before residual functional capacity is 4 even considered.” Kennedy, 758 F.3d at 1176. If a claimant meets the listed 5 criteria for disability, she will be found to be disabled. 20 C.F.R. § 6 404.1520(a)(4)(iii). 7 “To meet a listed impairment, a claimant must establish that he or she meets 8 each characteristic of a listed impairment relevant to his or her claim.” Tackett, 9 180 F.3d at 1099 (emphasis in original); 20 C.F.R. § 404.1525(d). “To equal a 10 listed impairment, a claimant must establish symptoms, signs and laboratory 11 findings ‘at least equal in severity and duration’ to the characteristics of a relevant 12 listed impairment . . . .” Tackett, 180 F.3d at 1099 (emphasis in original) (quoting 13 20 C.F.R. § 404.1526(a). “If a claimant suffers from multiple impairments and 14 none of them individually meets or equals a listed impairment, the collective 15 symptoms, signs and laboratory findings of all of the claimant’s impairments will 16 be evaluated to determine whether they meet or equal the characteristics of any 17 relevant listed impairment.” Tackett, 180 F.3d at 1099. However, “ ‘[m]edical 18 equivalence must be based on medical findings,” and “[a] generalized assertion of 19 functional problems is not enough to establish disability at step three.’ ” Id. at 20 1100 (quoting 20 C.F.R. § 404.1526(a)), ORDER - 25 1 The claimant bears the burden of establishing his impairment (or 2 combination of impairments) meets or equals the criteria of a listed impairments. 3 Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). “An adjudicator’s 4 articulation of the reason(s) why the individual is or is not disabled at a later step in 5 the sequential evaluation process will provide rationale that is sufficient for a 6 subsequent reviewer or court to determine the basis for the finding about medical 7 equivalence at step 3.” Social Security Ruling (SSR) 17-2P, 2017 WL 3928306, at 8 *4 (effective March 27, 2017). 9 Here, the ALJ found Plaintiff’s back impairment did not meet or equal a 10 listing, including Listing 1.04A. Tr. 728. In order to meet Listing § 1.04A, a 11 claimant must establish: (1) evidence of nerve root compression characterized by 12 neuro-anatomic distribution of pain; (2) limitations of motion of the spine; (3) 13 motor loss (“atrophy with associated muscle weakness or muscle weakness”) 14 accompanied by sensory or reflex loss, and (4) if there is involvement of the lower 15 back, positive straight-leg raising test (sitting and supine). Gnibus v. Berryhill, 16 2017 WL 977594, at *4 (E. D. Cal. March 13, 2017) (finding Listing 1.04A was 17 met) (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“For a claimant to show 18 that his impairment matches a listing, it must meet all of the specified medical 19 criteria. An impairment that manifests only some of those criteria, no matter how 20 severely, does not qualify.”)). Further, Plaintiff must establish the impairment ORDER - 26 1 satisfies the 12-month durational requirement. Id. at *7 (internal citations 2 omitted); see also Stewart v. Colvin, 674 F.App’x 634, 635 (9th Cir. 2017) 3 (Plaintiff failed to carry his burden of establishing that he met all of the criteria for 4 Listing 1.04A). 5 The ALJ found Plaintiff does not meet Listing 1.04 because she does not 6 have the necessary neurological examination findings and because she is able to 7 ambulate effectively. Tr. 728. While ineffective ambulation is not a requirement 8 of Listing 1.04A, evidence of neuro-anatomic distribution of pain, and motor loss 9 with reflex or sensory loss is required, as are positive straight leg raises when the 10 impairment involves the lower back. See 20 C.F.R. Part 404, Subpt. P, Appx. 1, § 11 1.04(A). Plaintiff argues she meets Listing 1.04A but points to straight leg raise 12 tests that indicate positive results but do not differentiate between sitting and 13 supine tests. ECF No. 21 at 15 (citing Tr. 334, 350, 367, 379). As Listing 1.04A 14 requires both supine and seated positive straight leg raises, Plaintiff has not met her 15 burden in demonstrating she meets Listing 1.04A. Plaintiff does not set forth any 16 argument as to how her impairment is equal in severity to Listing 1.04A beyond 17 stating Dr. Burkett opined Plaintiff was “close to equaling Listing 1.04.” As the 18 ALJ’s rejection of Dr. Burkett’s opinion was supported by substantial evidence for 19 the reasons discussed supra, Plaintiff has not met her burden in demonstrating her 20 ORDER - 27 1 impairment is equal in severity to Listing 1.04A. Plaintiff is not entitled to remand 2 on these grounds. 3 4 C. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 5 convincing in discrediting her symptom claims. ECF No. 21 at 16-20. An ALJ 6 engages in a two-step analysis to determine whether to discount a claimant’s 7 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 8 “First, the ALJ must determine whether there is objective medical evidence of an 9 underlying impairment which could reasonably be expected to produce the pain or 10 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 11 “The claimant is not required to show that [the claimant’s] impairment could 12 reasonably be expected to cause the severity of the symptom [the claimant] has 13 alleged; [the claimant] need only show that it could reasonably have caused some 14 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 15 Second, “[i]f the claimant meets the first test and there is no evidence of 16 malingering, the ALJ can only reject the claimant’s testimony about the severity of 17 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 18 rejection.” Ghanim, 763 F.3d at 1163 (citations omitted). General findings are 19 insufficient; rather, the ALJ must identify what symptom claims are being 20 discounted and what evidence undermines these claims. Id. (quoting Lester, 81 ORDER - 28 1 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the 2 ALJ to sufficiently explain why it discounted claimant’s symptom claims)). “The 3 clear and convincing [evidence] standard is the most demanding required in Social 4 Security cases.” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. 5 Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 6 Factors to be considered in evaluating the intensity, persistence, and limiting 7 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 8 duration, frequency, and intensity of pain or other symptoms; 3) factors that 9 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 10 side effects of any medication an individual takes or has taken to alleviate pain or 11 other symptoms; 5) treatment, other than medication, an individual receives or has 12 received for relief of pain or other symptoms; 6) any measures other than treatment 13 an individual uses or has used to relieve pain or other symptoms; and 7) any other 14 factors concerning an individual’s functional limitations and restrictions due to 15 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 16 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 17 individual’s record,” to “determine how symptoms limit ability to perform work18 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 19 The ALJ found that Plaintiff’s medically determinable impairments could 20 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s ORDER - 29 1 statements concerning the intensity, persistence, and limiting effects of her 2 symptoms were not entirely consistent with the evidence. Tr. 729. 3 1. Longitudinal Record 4 The ALJ found Plaintiff’s symptom claims were inconsistent with the 5 longitudinal record. Tr. 730-31. An ALJ may not discredit a claimant’s pain 6 testimony and deny benefits solely because the degree of pain alleged is not 7 supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 856 8 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. 9 Bowen, 885 F.2d 597, 601 (9th Cir. 1989). Medical evidence is a relevant factor, 10 however, in determining the severity of a claimant’s pain and its disabling effects. 11 Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). Minimal objective evidence 12 is a factor which may be relied upon in discrediting a claimant’s testimony, 13 although it may not be the only factor. See Burch, 400 F.3d at 680. 14 The ALJ noted that while Plaintiff had some abnormalities on examination, 15 the medical records show Plaintiff had intact hardware after her surgery, Tr. 468, 16 and the records demonstrate Plaintiff had improvement in her symptoms after the 17 surgery, as evidenced by Plaintiff often having normal lower extremity sensation, 18 strength, deep tendon reflexes, neurological findings, balance, and gait, and 19 negative straight leg raises. Tr. 730 (citing Tr. 468, 505, 509, 555-56, 704-05, 20 966). Plaintiff was observed as being in no acute distress at multiple appointments. ORDER - 30 1 Tr. 730 (citing Tr. 473, 487, 501, 505, 509). When seen to establish care in July 2 2019, after not seeking care for several years, Plaintiff had a generally normal 3 physical examination and did not report any pain or limitations due to her back 4 impairment. Tr. 730 (citing Tr. 965-66). Despite Plaintiff’s allegation that she has 5 difficulty walking, she has not reported using an assistive device and has never 6 been prescribed an assistive device nor been observed using one. Tr. 730-31 7 (citing Tr. 505, 509). While Plaintiff offers an alternative interpretation of the 8 evidence, the ALJ reasonably concluded that Plaintiff’s symptom claims were 9 inconsistent with the longitudinal record. This finding is supported by substantial 10 evidence and was a clear and convincing reason, along with the other reasons 11 offered, to discount Plaintiff’s symptoms complaints. 12 2. Activities of Daily Living 13 The ALJ found Plaintiff’s symptom claims were inconsistent with her 14 activities of daily living. Tr. 730. The ALJ may consider a claimant’s activities 15 that undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can 16 spend a substantial part of the day engaged in pursuits involving the performance 17 of exertional or non-exertional functions, the ALJ may find these activities 18 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603; Molina, 19 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to 20 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when ORDER - 31 1 the claimant reports participation in everyday activities indicating capacities that 2 are transferable to a work setting” or when activities “contradict claims of a totally 3 debilitating impairment.” Molina, 674 F.3d at 1112-13. 4 The ALJ noted Plaintiff was able to walk for 80 minutes with only mild 5 discomfort, carry her granddaughter, walk six miles without exacerbating her 6 symptoms, engage in daily walks, and participate in 50 minutes of light 7 conditioning and stretching. Tr. 730 (citing Tr. 661, 693, 696-97). Plaintiff also 8 reported resuming her customary activities of daily living in her home including 9 managing her wood stove, grocery shopping, and preparing light meal prep, and 10 reported pain/discomfort of a two to four on a scale up to 10 when engaging in the 11 activities. Tr. 660, 670. She reported she had progressed to being able to clean her 12 home for one to two hours. Tr. 671. Plaintiff also worked part-time as a bartender 13 in September 2013. Tr. 730 (citing Tr. 493). Plaintiff argues her activities of daily 14 living are not inconsistent with her allegations, however the ALJ reasonably found 15 Plaintiff’s ability to engage in activities, including walking six miles without 16 exacerbating her symptoms is inconsistent with her allegations of a disabling back 17 impairment. On this record, the ALJ reasonably concluded that Plaintiff’s 18 symptom claims were inconsistent with her activities of daily living. This finding 19 is supported by substantial evidence and was a clear and convincing reason to 20 discount Plaintiff’s symptoms complaints. ORDER - 32 1 3. Lack of Treatment 2 The ALJ found Plaintiff’s symptom claims were inconsistent with her lack 3 of treatment. Tr. 730-31. An unexplained, or inadequately explained, failure to 4 seek treatment or follow a prescribed course of treatment may be considered when 5 evaluating the claimant’s subjective symptoms. Orn, 495 F.3d at 638. And 6 evidence of a claimant’s self-limitation and lack of motivation to seek treatment 7 are appropriate considerations in determining the credibility of a claimant’s 8 subjective symptom reports. Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 9 2001); Bell-Shier v. Astrue, 312 F. App’x 45, *3 (9th Cir. 2009) (unpublished 10 opinion) (considering why plaintiff was not seeking treatment). Disability benefits 11 may not be denied because of the claimant’s failure to obtain treatment she cannot 12 obtain for lack of funds. Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). 13 In May 2014, Plaintiff reported she had a TENS unit that helped with her 14 pain, but reported she was not using it. Tr. 487, 731. Plaintiff did not seek 15 treatment from June 2014 through July 2019. Tr. 730. When seen to establish care 16 in July 2019, Plaintiff had a generally normal physical examination and did not 17 report any pain or limitations due to her back impairment. Tr. 730 (citing Tr. 96518 66). Plaintiff argues she did not seek care from June 2014 through July 2019 19 because she did not have the funds to pay for treatment or insurance, and she did 20 not want to see doctors for opiate medication. ECF No. 21 at 19. However, ORDER - 33 1 Plaintiff does not offer an explanation as to why she did not report any symptoms 2 or limitations due to her back impairment when seen to establish care in July 2019. 3 On this record, the ALJ reasonably concluded that Plaintiff’s symptom claims were 4 inconsistent with Plaintiff’s lack of treatment. This finding is supported by 5 substantial evidence and was a clear and convincing reason to discount Plaintiff’s 6 symptoms complaints. Further, any error in the ALJ failing to consider Plaintiff’s 7 reasons for not seeking treatment would be harmless, as the ALJ gave other clear 8 and convincing reasons to reject Plaintiff’s symptom claims. See Molina, 674 F.3d 9 at 1115. Plaintiff is not entitled to remand on these grounds. 10 11 D. Lay Witness Evidence Plaintiff challenges the ALJ’s consideration of the lay witness statement of 12 Plaintiff’s father, Lindell Coots; Plaintiff’s mother, Sharon Coots; Plaintiff’s friend 13 whose name is not legible; Plaintiff’s daughter, Neshayla Daniel; Plaintiff’s friend, 14 Ellen Lake; Thomas P., Plaintiff’s son; and Michael Houser, Plaintiff’s boyfriend. 15 ECF No. 21 at 20-21. An ALJ must consider the statement of lay witnesses in 16 determining whether a claimant is disabled. Stout, 454 F.3d at 1053. Lay witness 17 evidence cannot establish the existence of medically determinable impairments, 18 but lay witness evidence is “competent evidence” as to “how an impairment affects 19 [a claimant’s] ability to work.” Id.; 20 C.F.R. § 404.1513; see also Dodrill v. 20 Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) (“[F]riends and family members in a ORDER - 34 1 position to observe a claimant’s symptoms and daily activities are competent to 2 testify as to her condition.”). If a lay witness statement is rejected, the ALJ “‘must 3 give reasons that are germane to each witness.’” Nguyen, 100 F.3d at 1467 (citing 4 Dodrill, 12 F.3d at 919). 5 The lay witness statements generally restate Plaintiff’s symptom claims and 6 limitations, such as reports Plaintiff’s back impairment causes pain, difficulty 7 standing, bending, twisting, sitting, walking, lifting, and completing activities. Tr. 8 954-60. The ALJ considered all of the lay witness statements, and summarized 9 each in the decision. Tr. 732-34. The ALJ gave little weight to the lay witness 10 statements. Tr. 732-34. 11 The ALJ rejected the lay witness statements for the same reasons she 12 rejected Plaintiff’s symptom claims, as the ALJ found the lay witness statements 13 were also inconsistent with the longitudinal record, including the treatment record 14 after Plaintiff’s surgery, Plaintiff’s generally benign presentation, and Plaintiff’s 15 activities of daily living. Tr. 732-34. Where the ALJ gives clear and convincing 16 reasons to reject a claimant’s testimony, and where a lay witness’s testimony is 17 similar to the claimant’s subjective complaints, the reasons given to reject the 18 claimant’s testimony are also germane reasons to reject the lay witness testimony. 19 Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009); see also 20 Molina, 674 F.3d at 1114 (“[I]f the ALJ gives germane reasons for rejecting ORDER - 35 1 testimony by one witness, the ALJ need only point to those reasons when rejecting 2 similar testimony by a different witness”). As the Court finds the ALJ gave clear 3 and convincing reasons to reject Plaintiff’s symptom claims, the ALJ also gave 4 germane reasons to reject the lay witness testimony. Plaintiff is not entitled to 5 remand on these grounds. 6 7 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 8 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 9 Accordingly, IT IS HEREBY ORDERED: 10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 21, is DENIED. 11 2. Defendant’s Motion for Summary Judgment, ECF No. 22, is GRANTED. 12 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 13 The District Court Executive is directed to file this Order, provide copies to 14 counsel, and CLOSE THE FILE. 15 DATED November 12, 2020. 16 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 ORDER - 36

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