Stalder v. Kijakazi, No. 2:2022cv00235 - Document 15 (E.D. Wash. 2023)

Court Description: ORDER DENYING 11 PLAINTIFF'S BRIEF AND GRANTING 13 DEFENDANT'S BRIEF. File CLOSED. Signed by Senior Judge Rosanna Malouf Peterson. (WMK, Case Administrator)

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Stalder v. Kijakazi Doc. 15 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Dec 15, 2023 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 CATHERINE S., NO: 2:22-CV-235-RMP Plaintiff, 8 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF v. 9 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 BEFORE THE COURT, without oral argument, are briefs from Plaintiff 14 Catherine S.1, ECF No. 11, and Defendant the Commissioner of Social Security (the 15 “Commissioner”), ECF No. 13. Plaintiff seeks judicial review, pursuant to 42 16 U.S.C. §§ 405(g) of the Commissioner’s denial of her claims for Social Security 17 Income (“SSI”) under Title XVI, and Disability Insurance Benefits (“DIB”) under 18 Title II, of the Social Security Act (the “Act”). See ECF No. 11 at 1–2. 19 20 21 1 In the interest of protecting Plaintiff’s privacy, the Court uses Plaintiff’s first name and last initial. ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 1 Dockets.Justia.com 1 Having considered the parties’ briefs; Plaintiff’s reply, ECF No. 14, the 2 administrative record, and the applicable law, the Court is fully informed. For the 3 reasons set forth below, the Court denies judgment for Plaintiff and directs entry of 4 judgment in favor of the Commissioner. 5 BACKGROUND 6 General Context 7 Plaintiff applied for SSI and DIB on September 23, 2019, alleging disability 8 onset on May 15, 2019. Administrative Record (“AR”)2 237, 244. Plaintiff was 35 9 years old on the alleged disability onset date and asserted that she was unable to 10 work primarily due to a “bad back.” AR 271. Plaintiff’s claims proceeded to a 11 telephonic hearing before Administrative Law Judge (“ALJ”) Mark Kim on April 12 27, 2021. AR 76–101. Plaintiff was present and represented by non-attorney 13 representative Cheryl Mullins. AR 76–78. The ALJ heard from vocational expert 14 (“VE”) Erin Hunt as well as from Plaintiff. AR 80–100. ALJ Kim issued an 15 unfavorable decision on May 13, 2021. 16 ALJ’s Decision 17 Applying the five-step evaluation process, ALJ Kim found: 18 Step one: Plaintiff meets the insured status requirements of the Act through 19 September 30, 2025. AR 18. Plaintiff has not engaged in substantial gainful activity 20 2 21 The Administrative Record is filed at ECF No. 9. ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 2 1 since May 15, 2019, the alleged onset date. AR 18 (citing 20 C.F.R. §§ 404.1572 et 2 seq. and 416.971 et seq.). 3 Step two: Plaintiff has the following severe impairments: lumbar 4 degenerative disc disease; thoracic degenerative disc disease; cervical degenerative 5 disc disease; obesity; major depressive disorder; post-traumatic stress disorder 6 (“PTSD”); and attention deficit hyperactivity disorder (“ADHD”). AR 18–19 (citing 7 20 C.F.R. §§ 404.1520(c) and 416.920(c)). In addition, the ALJ found that 8 fibromyalgia is not established under Social Security Ruling (“SSR”) 12-2p, which 9 articulates criteria for finding that impairment medically determinable under the Act. 10 The ALJ further memorialized that “[n]evertheless, all of the claimant’s symptoms 11 have been considering [sic] in finding the residual functional capacity set forth 12 below.” AR 19. 13 Step three: The ALJ concluded that Plaintiff does not have an impairment, or 14 combination of impairments, that meets or medically equals the severity of one of 15 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 16 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). AR 19. In 17 reaching this conclusion, the ALJ considered SSR 19-2 for evaluating obesity and 18 found that the severity of Plaintiff’s physical impairments does not meet or 19 medically equal the criteria of listings 1.15 for disorders of the spine resulting in 20 compromise of a nerve root or 11.6 for lumbar spinal stenosis resulting in 21 compromise of the cauda equine. AR 19. The ALJ found that Plaintiff’s mental ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 3 1 impairments, considered singly and in combination, do not meet or medically equal 2 the criteria for listings 12.04 for depressive, bipolar, and related disorders; 12.11 for 3 neurodevelopmental disorders; or 12.15 for trauma- and stress-related disorders. AR 4 19. In considering the listings for mental disorders, the ALJ considered the 5 “paragraph B” criteria and found that Plaintiff is mildly limited in understanding, 6 remembering, or applying information and moderately limited in: interacting with 7 others; concentrating, persisting, or maintaining pace; and adapting or managing 8 oneself. AR 19–20. Finding that Plaintiff does not have mental impairments that 9 cause at last two marked limitations, the ALJ concluded that Plaintiff does not 10 satisfy the “paragraph B” criteria. In addition, the ALJ found that the “paragraph C” 11 criteria are not present in this case. AR 20. 12 Residual Functional Capacity (“RFC”): The ALJ found that Plaintiff can 13 perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) 14 except that Plaintiff can stand and/or walk for only thirty minutes at a time. AR 20– 15 21. The ALJ further limited Plaintiff’s ability to perform sedentary work as follows: 16 She can never crawl or climb ladders, ropes, or scaffolds; only occasionally stoop, kneel, crouch, and climb flights of stairs; and only occasionally reach overhead bilaterally. She must avoid extreme temperatures, excessive vibrations, and unprotected heights. Her work should be limited to simple, routine tasks with a reasoning level of 3 or less with only occasional and simple changes. In addition, the claimant is limited to work involving only occasional and superficial interaction with the public and coworkers. 17 18 19 20 AR 21. 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 4 1 In formulating Plaintiff’s RFC, the ALJ found that while Plaintiff’s medically 2 determinable impairments could reasonably be expected to cause some of the alleged 3 symptoms, Plaintiff’s “statements concerning the intensity, persistence, and limiting 4 effects of these symptoms are not entirely consistent with the medical evidence and 5 other evidence in the record for the reasons explained in this decision.” AR 22. 6 Step four: The ALJ found that Plaintiff is unable to perform past relevant 7 work as a home attendant without needing to perform work activities requiring 8 activities that exceed the RFC. AR 25–26 (citing 20 C.F.R. §§ 404.1565 and 9 416.965). 10 Step five: The ALJ found that Plaintiff has at least a high school education 11 and that she was 35 years old, which is defined as a younger individual age 18-49, 12 on the alleged disability onset date. AR 26 (citing 20 C.F.R. §§ 404.1563, 404.1564, 13 416.963, and 416.964). The ALJ found that transferability of job skills is not 14 material to the determination of disability because use of the Medical-Vocational 15 Rules as a framework supports a finding that the claimant is “not disabled,” whether 16 or not the claimant has transferable job skills. AR 26 (citing SSR 82-41; 20 C.F.R. 17 Part 404, Subpart P, Appendix 2). 18 The ALJ further found that during the relevant period, considering Plaintiff’s 19 age, education, work experience, and RFC, there were jobs that existed in significant 20 numbers in the national economy that Plaintiff could have performed, including the 21 following representative occupations: document preparer (sedentary, unskilled work, ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 5 1 with around 20,200 jobs nationally); table worker (sedentary, unskilled work with 2 around 20,900 jobs nationally); and taper (sedentary, unskilled work, with around 3 11,900 jobs nationally). AR 26–27. The ALJ concluded that Plaintiff has not been 4 under a disability, as defined by the Act, from May 15, 2019, through the date of the 5 ALJ’s decision. AR 27 (citing 20 C.F.R. §§ 404.1520(g) and 416.920 (g)). 6 7 Through counsel, Christopher H. Dellert, Plaintiff sought review of the ALJ’s decision in this Court. ECF No. 1. 8 9 10 LEGAL STANDARD Standard of Review Congress has provided a limited scope of judicial review of the 11 Commissioner’s decision. 42 U.S.C. § 405(g). A court may set aside the 12 Commissioner’s denial of benefits only if the ALJ’s determination was based on 13 legal error or not supported by substantial evidence. See Jones v. Heckler, 760 F.2d 14 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The [Commissioner’s] 15 determination that a claimant is not disabled will be upheld if the findings of fact are 16 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 17 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere 18 scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 19 1119 n.10 (9th Cir. 1975); McCallister v. Sullivan, 888 F.2d 599, 601–02 (9th Cir. 20 1989). Substantial evidence “means such evidence as a reasonable mind might 21 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 6 1 401 (1971) (citations omitted). “[S]uch inferences and conclusions as the 2 [Commissioner] may reasonably draw from the evidence” also will be upheld. Mark 3 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the 4 record, not just the evidence supporting the decisions of the Commissioner. 5 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). 6 A decision supported by substantial evidence still will be set aside if the 7 proper legal standards were not applied in weighing the evidence and making a 8 decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 9 1988). Thus, if there is substantial evidence to support the administrative findings, 10 or if there is conflicting evidence that will support a finding of either disability or 11 nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 12 812 F.2d 1226, 1229–30 (9th Cir. 1987). 13 Definition of Disability 14 The Act defines “disability” as the “inability to engage in any substantial 15 gainful activity by reason of any medically determinable physical or mental 16 impairment which can be expected to result in death, or which has lasted or can be 17 expected to last, for a continuous period of not less than 12 months.” 42 U.S.C. § 18 423(d)(1)(A). The Act also provides that a claimant shall be determined to be under 19 a disability only if the impairments are of such severity that the claimant is not only 20 unable to do their previous work, but cannot, considering the claimant’s age, 21 education, and work experiences, engage in any other substantial gainful work ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 7 1 which exists in the national economy. 42 U.S.C. § 423(d)(2)(A). Thus, the 2 definition of disability consists of both medical and vocational components. Edlund 3 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 4 Sequential Evaluation Process 5 The Commissioner has established a five-step sequential evaluation process 6 for determining whether a claimant is disabled. 20 C.F.R §§ 416.920, 404.1520. 7 Step one determines if they are engaged in substantial gainful activities. If the 8 claimant is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. 9 §§ 416.920(a)(4)(i), 404.1520(a)(4)(i). 10 If the claimant is not engaged in substantial gainful activities, the decision 11 maker proceeds to step two and determines whether the claimant has a medically 12 severe impairment or combination of impairments. 20 C.F.R. §§ 416.920(a)(4)(ii), 13 404.1520(a)(4)(ii). If the claimant does not have a severe impairment or 14 combination of impairments, the disability claim is denied. 15 If the impairment is severe, the evaluation proceeds to the third step, which 16 compares the claimant’s impairment with listed impairments acknowledged by the 17 Commissioner to be so severe as to preclude any gainful activity. 20 C.F.R. §§ 18 416.920(a)(4)(iii), 404.1520(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If 19 the impairment meets or equals one of the listed impairments, the claimant is 20 conclusively presumed to be disabled. 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 8 1 If the impairment is not one conclusively presumed to be disabling, the 2 evaluation proceeds to the fourth step, which determines whether the impairment 3 prevents the claimant from performing work that they have performed in the past. If 4 the claimant can perform their previous work, the claimant is not disabled. 20 5 C.F.R. §§ 416.920(a)(4)(iv), 404.1520(a)(4)(iv). At this step, the claimant’s RFC 6 assessment is considered. 7 If the claimant cannot perform this work, the fifth and final step in the process 8 determines whether the claimant is able to perform other work in the national 9 economy considering their residual functional capacity and age, education, and past 10 work experience. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v); Bowen v. 11 Yuckert, 482 U.S. 137, 142 (1987). 12 The initial burden of proof rests upon the claimant to establish a prima facie 13 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 14 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 15 is met once the claimant establishes that a physical or mental impairment prevents 16 them from engaging in their previous occupation. Meanel, 172 F.3d at 1113. The 17 burden then shifts, at step five, to the Commissioner to show that (1) the claimant 18 can perform other substantial gainful activity, and (2) a “significant number of jobs 19 exist in the national economy” that the claimant can perform. Kail v. Heckler, 722 20 F.2d 1496, 1498 (9th Cir. 1984). 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 9 1 ISSUES ON APPEAL 2 The parties’ briefs raise the following issues regarding the ALJ’s decision: 3 1. from fibromyalgia and chronic pain syndrome? 4 2. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Did the ALJ erroneously assess Plaintiff’s symptoms allegedly resulting Did the ALJ erroneously assess Plaintiff’s subjective symptom statements? Fibromyalgia Plaintiff argues that the ALJ “asserted that he was taking Plaintiff’s fibromyalgia into account and then relied on findings that were irrelevant to that diagnosis to discredit Plaintiff’s allegations.” ECF No. 14 at 3. Specifically, Plaintiff argues that the ALJ erroneously relied on record findings of normal gait, and only mildly reduced strength, and observations that Plaintiff was able to walk without the need for assistive devices. Id. Plaintiff acknowledges that this evidence may be interpreted to undermine her allegations related to her degenerative disc disease, but Plaintiff argues that these findings have no bearing on her allegations of limitations stemming from fibromyalgia or chronic pain syndrome. Id. The Commissioner contends that Plaintiff does not offer any evidence of fibromyalgia that meet either of the diagnostic criteria set forth in SSR 12-2p. ECF No. 13 at 9. Moreover, the Commissioner argues that Plaintiff’s contention that “her clinical presentation should be ignored in the face of her diagnosed fibromyalgia” ignores Ninth Circuit authority that an ALJ “may properly discount [statements that constant pain requires a claimant to lie down during the day] if the claimant ‘[does] ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 10 1 not exhibit muscular atrophy or any other physical signs of an inactive, totally 2 incapacitated individual.’” Id. at 9–10 (citing Meanel v. Apfel, 172, F.3d 1111, 1114 3 (9th Cir. 1999); Smith v. Berryhill, 752 Fed. Appx. 473, 475 (9th Cir. 2019)). The 4 Commissioner argues that the ALJ in this case properly considered the longitudinal 5 record, “appropriately reviewing both inconsistencies in Plaintiff’s testimony and 6 her non-compliance with her prescribed medical routine[,]” in determining the extent 7 to which Plaintiff’s symptoms, whether from fibromyalgia, a chronic pain syndrome, 8 or another condition, affect her ability to work. Id. at 10–11. 9 The ALJ concluded at step two that fibromyalgia is not a severe impairment 10 because Plaintiff did not establish its severity impairment in accordance with SSR 11 12-2p. AR 19. ALJ Kim memorialized that he nevertheless considered all of 12 Plaintiff’s symptoms in formulating the RFC. AR 19. 13 SSR 12-2p recognizes that fibromyalgia is a “complex medical condition 14 characterized primarily by widespread pain in the joints, muscles, tendons, or nearby 15 soft tissues . . . .” SSR 12-2p, Titles II and XVI: Evaluation of Fibromyalgia, 2012 16 SSR LEXIS 1, at *2, 2012 WL 3104869 (July 25, 2012). A claimant may establish 17 that she has fibromyalgia as a medically determinable impairment by satisfying 18 either of two sets of criteria set forth in SSR 12-2p. Rounds v. Comm’r Soc. Sec. 19 Admin. 807 F.3d 996, 1005 (9th Cir. 2015). First, Plaintiff may provide evidence 20 showing that she has (1) a history of widespread pain; (2) at least eleven positive 21 tender points on physical examination; and (3) “[e]vidence that other disorders that ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 11 1 could cause the symptoms or signs were excluded.” 2012 SSR LEXIS 1, at *2. 2 Alternatively, a claimant may establish that fibromyalgia is a medically 3 determinable impairment by showing that she has (1) a history of widespread pain; 4 (2) “[r]epeated manifestations” of six or more fibromyalgia symptoms, signs, or co- 5 occurring conditions; and (3) “[e]vidence that other disorders that could cause these 6 repeated manifestations of symptoms, signs, or co-occurring conditions were 7 excluded.” 2012 SSR LEXIS 1, at *2. 8 9 Plaintiff does not show that the evidence in the record satisfies either of these criteria. Moreover, Plaintiff does not show that the ALJ failed to consider any of the 10 symptoms relating to Plaintiff’s alleged fibromyalgia or chronic pain syndrome at 11 later steps in the sequential analysis, even if the ALJ did not refer to chronic pain 12 syndrome by name. Rather, as the Commissioner points out, it is notable that the 13 medical source who found Plaintiff to have fibromyalgia and chronic pain syndrome, 14 and associated symptoms, opined that Plaintiff was capable of less intensive 15 exertional and postural limitations on account of those conditions than ALJ Kim’s 16 RFC. See ECF No. 13 at 11 (citing AR 120–22, 20–21). Accordingly, the Court 17 finds no error based on the ALJ’s application of SSR 12-2p or in the ALJ’s 18 assessment of Plaintiff’s alleged fibromyalgia and chronic pain syndrome generally. 19 Subjective Complaints 20 Plaintiff argues that the ALJ failed to provide specific, clear, and convincing 21 reasons for discounting Plaintiff’s testimony. ECF No. 11 at 7. Plaintiff argues that ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 12 1 ALJ Kim took a February 2021 treatment note out of context when he found that 2 Plaintiff had reported spending time with family and friends with little anxiety, and, 3 therefore, had less difficulty interacting with others than Plaintiff claimed. Id. at 8 4 (citing AR 23, 916, 918, 922, and 924). Plaintiff argues that the evidence that the 5 ALJ ignored indicated that Plaintiff reported staying with a friend around the same 6 time to avoid domestic violence. Id. at 9 (adding “[t]hat Plaintiff reported little 7 anxiety when spending time in a more supportive environment was not evidence that 8 she would be able to interact appropriately with co-workers and supervisors in light 9 of other evidence in the record that the ALJ did not address.”). Plaintiff asserts that 10 the record supports that Plaintiff “repeatedly had difficulty interacting appropriately 11 with health care providers.” Id. at 10. 12 In addition, Plaintiff faults the ALJ for allegedly failing to address Plaintiff’s 13 complaint that she cannot sit for extended periods. ECF No. 11 at 10–11. Plaintiff 14 contends that the ALJ’s citation to records indicating that weight loss helped to 15 relieve Plaintiff’s back pain and Plaintiff displayed a normal gait “were not 16 informative as to Plaintiff’s ability to sit for extended periods of time[.]” Id. at 11 17 (citing AR 379, 387, and 392). Plaintiff asserts that the ALJ’s error in this respect is 18 harmful because Plaintiff’s ability to do sedentary work depends on her ability to sit 19 for much of the day. Id. at 12. 20 21 The Commissioner responds that the ALJ relied on substantial evidence in finding that the record fails to support the extreme symptoms that Plaintiff alleged, ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 13 1 including her claims that she could not sit, stand, or walk for extended periods and 2 consequently “spent much of her time lying down.” ECF No. 13 at 11 (citing ECF 3 No. 11 at 7; AR 84, 86, and 89). The Commissioner argues that the ALJ’s decision 4 reflects that he carefully examined the objective medical evidence and found that it 5 supported more intact physical and mental functioning than Plaintiff alleged. Id. at 6 12–14 (citing AR 20, 22–23). The Commissioner further argues that the ALJ also 7 reasonably relied on Plaintiff’s treatment history in discounting her complaints, 8 citing to evidence that Plaintiff “persistently reported positive outcomes from her 9 treatment and that setbacks in her mental health were directly tied to her medication 10 non-compliance.” Id. at 15 (citing AR 22–23, 379, and 955). The Commissioner 11 also submits that the ALJ cited to records supporting that, although Plaintiff “was 12 not pain-free, she was walking much better and doing well with less pain, only 13 months after her back surgery.” Id. at 15–16 (citing AR 22–23, 580, 664, and 669). 14 The Commissioner adds that the ALJ was permitted to find “great significance” in 15 Plaintiff’s decision to decline physical therapy. Id. at 16 (citing AR 23, 670; SSR 16 16-3p, 2016 WL 1119029). Moreover, the Commissioner defends the ALJ’s finding 17 that Plaintiff’s activities were inconsistent with the level of physical and mental 18 limitation that she alleged and cites the Court to evidence that Plaintiff was able, 19 after her alleged onset date, to go for “drives,” lift her mother while caretaking for 20 her, swim and hike with friends, camp, read and do online research, and socialize. 21 Id. at 17–18 (citing AR 22, 273, 342, 394–95, 402, 916–18, and 955). ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 14 1 In deciding whether to accept a claimant’s subjective pain or symptom 2 testimony, an ALJ must perform a two-step analysis. Smolen v. Chater, 80 F.3d 3 1273, 1281 (9th Cir. 1996). First, the ALJ must evaluate “whether the claimant has 4 presented objective medical evidence of an underlying impairment ‘which could 5 reasonably be expected to produce the pain or other symptoms alleged.’” 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. 7 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the first test is met and there 8 is no evidence of malingering, “the ALJ can reject the claimant’s testimony about 9 the severity of [his] symptoms only by offering specific, clear and convincing 10 11 reasons for doing so.” Smolen, 80 F.3d at 1281. There is no allegation of malingering in this case. Plaintiff alleges that she 12 became unable to work on May 15, 2019, identified her impairment as a “bad back,” 13 and elsewhere asserted that her severe impairments included degenerative disc 14 disease, chronic back pain, fibromyalgia, obesity, hypertension, and post-traumatic 15 stress disorder. AR 271, 328. As summarized by the ALJ: 16 17 18 19 20 21 The claimant testified at the hearing to back pain due to a history of back surgeries, including as recently as December 2019, and that this causes her to be unable to stand or walk for long periods of time. She also testified to limited ability to lift such that she would be unable to repetitively lift a weight equivalent to that of a gallon of milk, and to trouble with concentration and retaining information due to pain as well as due to mental symptoms, especially those related to PTSD. The claimant also stated that she “pretty much never sit[s] straight up” because this causes a lot of pain, and that she gets stiff with cold weather and does not have a good heat tolerance. In addition, the claimant testified that being around people is difficult for her due to ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 15 1 2 3 4 5 6 7 8 both pain and mental symptoms, as she gets “kind of grouchy” and, due to this issue, secludes herself from friends and family. The claimant further testified to limited ability to do various activities of daily living, including household chores, shopping, and attending to personal care tasks like washing her hair. Along these lines, she testified to use of assistive devices such as a walker, including at home, and to difficulty holding her arms overhead during the last couple of months. She also testified to taking fewer showers due to both pain and symptoms of depression. Finally, she testified to lying down more than a dozen times during the day in order to take pressure off her back, trouble sleeping due to both muscle spasms and night terrors caused by her PTSD such that she takes daily naps typically lasting for an hour or two, and that she does not handle changes in routine well. AR 21. 9 The ALJ found that the objective medical evidence, Plaintiff’s treatment 10 record, and Plaintiff’s activities, do not support a more restrictive RFC than the ALJ 11 formulated. AR 21–22. 12 Plaintiff specifically challenges the ALJ’s reliance on a treatment note in 13 which Plaintiff reported being able to socialize with family and friends with more 14 energy and “barely any anxiety” in February 2021 because Plaintiff simultaneously 15 was staying with a friend to avoid intimate partner violence. See ECF No. 14 at 4. 16 Plaintiff minimizes the significance of her February 2021 self-report because those 17 reported interactions occurred in a supportive environment that was in contrast with 18 the abusive relationship that Plaintiff was evading. See id. However, Plaintiff cites 19 to no authority nor makes any argument undermining the value of this substantial 20 evidence that Plaintiff could interact constructively with friends and family. See AR 21 916. Plaintiff instead cites the Court to records indicating that Plaintiff had ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 16 1 “difficulty interacting with health care providers, including leave the hospital against 2 medical advice; getting angry with and yelled [sic] at providers; and hanging up on 3 them when being asked basic preoperative questions or not getting her way; 4 demonstrating histrionic behaviors and refusing to follow instructions when 5 hospitalized for a suicide attempt, after having an MRI; and following her lumbar 6 surgery.” Id. (citing AR 367, 376, 559, 587–88, and 608). This evidence, even if it 7 is in contrast with the February 2021 treatment record cited by the ALJ, does not 8 undermine that Plaintiff reported interacting with friends and family constructively. 9 In addition, in citations collected by the Commissioner, the record demonstrates that 10 Plaintiff interacted in a “cooperative” and “pleasant” manner with health 11 professionals outside of a hospital setting. See ECF No. 13 at 20 (citing AR 20, 342, 12 350, 356, 387, 395–96, 397, 399, 401, 403, 404, 555, 561, 614, 661, 922, 924, and 13 935, 937, and 944). All of this evidence substantially supports that Plaintiff’s 14 behavior while in a hospital setting may not be probative of her general ability to 15 function, particularly when the record indicates that “hospitals and admissions are 16 specific triggers for Plaintiff’s PTSD.” See ECF No. 13 at 20 (citing AR 405, 482). 17 In short, it is the ALJ’s, not the Court’s, role to weigh conflicting evidence, and the 18 ALJ relied on sufficient evidence to support his conclusions here. 19 Furthermore, Plaintiff does not dispute that the ALJ cited to records that 20 indicated that, while Plaintiff exhibited some decreased strength, she demonstrated 21 normal gait, full and pain-free hip rotation, negative straight leg raising, and intact ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 17 1 sensation. AR 22, 346, 379, 387, and 392. In considering Plaintiff’s mental health 2 symptoms, the ALJ cited to a September 2019 record indicating that Plaintiff 3 demonstrated “grossly intact” memory upon mental examination. AR 20, 373. The 4 ALJ further cited to records indicating that Plaintiff frequently presented with a 5 logical, linear, and well-organized thought process. AR 20, 395, 399, 401, 554, 917, 6 927, 932, 941. These records undermine Plaintiff’s claim that she has poor 7 recollection and difficulty concentrating. See AR 21. Moreover, Plaintiff makes no 8 showing that this evidence amounts to cherry-picking or that the record as a whole 9 supports longstanding psychological disability. 10 The ALJ further reasoned that Plaintiff’s medical record indicated that 11 Plaintiff had been non-compliant with a prescribed medication around August 2019 12 and that Plaintiff declined physical therapy when it was recommended. AR 22–23, 13 346, 379, and 670). The Ninth Circuit recognizes that an ALJ may interpret a 14 claimant’s decision not to seek further treatment or follow through on recommended 15 treatment such as physical therapy as an indication that a claimant is not in as severe 16 pain as alleged. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 17 Noncompliance with treatment likewise may amount to substantial evidence in 18 support of an ALJ’s treatment of a claimant’s subjective symptom statements. 19 Burch, 400 F.3d at 681. 20 21 The ALJ also relied on Plaintiff’s daily activities to find the record inconsistent with the degree of impairment that Plaintiff alleged. Specifically, the ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 18 1 ALJ reasoned that the following activities undermine Plaintiff’s subjective symptom 2 complaints: caretaking for her mother, traveling to Texas, hiking, swimming, 3 floating on a river, camping, going on drives, socializing with friends and family, 4 reading, and doing online research. AR 22–24 (citing AR 262–69, 342, 394–95, 5 402, 916, 918, 926, and 955). An ALJ may consider daily activities in evaluating a 6 claimant’s testimony regarding their physical limitations and the severity of their 7 symptoms. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[I]f a claimant is 8 able to spend a substantial part of his day engaged in pursuits involving the 9 performance of physical functions that are transferable to a work setting, a specific 10 finding as to this fact may be sufficient to discredit an allegation of disabling pain.” 11 (emphasis in original)). 12 The Court concludes that ALJ Kim gave legally sufficient and supported 13 reasons for discounting Plaintiff’s subjective symptom testimony. Even if Plaintiff’s 14 suggested alternative interpretation of the evidence also is supported, Plaintiff does 15 not establish reversible error. Consequently, the Court grants judgment to the 16 Commissioner, and denies judgment to Plaintiff. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s Opening Brief, ECF No. 11, is DENIED. 19 2. Defendant the Commissioner’s Brief, ECF No. 13, is GRANTED. 20 4. Judgment shall be entered for Defendant. 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 19 1 IT IS SO ORDERED. The District Court Clerk is directed to enter this 2 Order, enter judgment for Defendant as directed, provide copies to counsel, and 3 close the file in this case. 4 5 6 DATED December 15, 2023. s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 20

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