Pope v. Kijakazi, No. 4:2023cv05090 - Document 11 (E.D. Wash. 2023)

Court Description: ORDER denying 7 Plaintiff's Motion Seeking Reversal of the Order of the Social Security Commissioner's Denial of Benefits. Signed by Judge Thomas O. Rice. (BF, Paralegal)

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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 MICHAEL P., NO. 4:23-CV-5090-TOR 8 Plaintiff, 9 ORDER AFFIRMING DENIAL OF TITLE II BENEFITS v. 10 11 KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, 12 Defendant. 13 BEFORE THE COURT is Plaintiff’s motion seeking a reversal of the Social 14 Security Commissioner’s denial of benefits (ECF No. 7). The Court has reviewed 15 the administrative record and the parties’ completed briefing, and is fully informed. 16 For the reasons discussed below, the Court DENIES Plaintiff’s motion and 17 AFFIRMS the final order of the Social Security Commissioner denying benefits. 18 JURISDICTION 19 The Court has jurisdiction over this case under 42 U.S.C. § 405(g). 20 // ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 1 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited: the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 7 relevant evidence that “a reasonable mind might accept as adequate to support a 8 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 9 substantial evidence equates to “more than a mere scintilla[,] but less than a 10 preponderance.” Id. In determining whether this standard has been satisfied, a 11 reviewing court must consider the entire record as a whole rather than searching 12 for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. If the evidence in the record “is 15 susceptible to more than one rational interpretation, [the court] must uphold the 16 ALJ’s findings if they are supported by inferences reasonably drawn from the 17 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation omitted). 18 Further, a district court “may not reverse an ALJ’s decision on account of an error 19 that is harmless.” Id. An error is harmless “where it is inconsequential to the 20 [ALJ’s] ultimate nondisability determination.” Id. at 1115 (quotation and citation ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 2 1 omitted). The appellant generally bears the burden of establishing harm. Shinseki 2 v. Sanders, 556 U.S. 396, 409-10 (2009). 3 4 FIVE-STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 5 the meaning of the Social Security Act. First, the claimant must be “unable to 6 engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which 8 has lasted or can be expected to last for a continuous period of not less than twelve 9 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 10 “of such severity that he is not only unable to do his previous work[,] but cannot, 11 considering his age, education, and work experience, engage in any other kind of 12 substantial gainful work which exists in the national economy.” 42 U.S.C. 13 § 423(d)(2)(A). 14 The Commissioner has established a five-step sequential analysis to 15 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 16 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 17 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 18 “substantial gainful activity,” the Commissioner will find that the claimant is not 19 disabled. 20 C.F.R. § 404.1520(b). 20 ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 3 1 If the claimant is not engaged in substantial gainful activities, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 4 from “any impairment or combination of impairments which significantly limits 5 [his or her] physical or mental ability to do basic work activities,” the analysis 6 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 7 does not satisfy this severity threshold, however, the Commissioner must find that 8 the claimant is not disabled. Id. 9 At step three, the Commissioner compares the claimant’s impairment to 10 several impairments recognized by the Commissioner to be so severe as to 11 preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 12 404.1520(a)(4)(iii). If the impairment is as severe, or more severe than one of the 13 enumerated impairments, the Commissioner must find the claimant disabled and 14 award benefits. 20 C.F.R. § 404.1520(d). 15 If the severity of the claimant’s impairment does meet or exceed the severity 16 of the enumerated impairments, the Commissioner must pause to assess the 17 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 18 generally defined as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite his or her limitations (20 C.F.R. § 20 404.1545(a)(1)), is relevant to both the fourth and fifth steps of the analysis. ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 4 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in 3 the past (“past relevant work”). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 4 capable of performing past relevant work, the Commissioner must find that the 5 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 6 performing such work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. 9 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 work experience. Id. If the claimant is capable of adjusting to other work, the 12 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 13 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the 14 analysis concludes with a finding that the claimant is disabled and is therefore 15 entitled to benefits. Id. 16 The claimant bears the burden of proof at steps one through four above. 17 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). If the 18 analysis proceeds to step five, the burden shifts to the Commissioner to establish 19 that (1) the claimant is capable of performing other work and (2) that such work 20 “exists in significant numbers in the national economy.” 20 C.F.R. § 416.1560(c). ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 5 1 2 ALJ’S FINDINGS On January 21, 2021, Plaintiff applied for Title II disability benefits, 3 alleging a disability onset date of September 8, 2020, which was later amended to 4 December 1, 2020. Tr. 22, 210. Plaintiff’s application was denied both initially 5 and upon reconsideration. Tr. 94, 100. On March 8, 2022, a telephonic hearing 6 was held before an administrative law judge (ALJ). Tr. 41. On March 28, 2022, 7 the ALJ denied Plaintiff’s claim. Tr. 22. 8 As a threshold matter, the ALJ found that Plaintiff met the insured status 9 requirements of the Social Security Act through December 31, 2026. Tr. 24. At 10 step one of the sequential evaluation analysis, the ALJ found Plaintiff had not 11 engaged in substantial gainful activity since the amended onset date of December 12 1, 2020. Id. At step two, the ALJ found Plaintiff had the following severe 13 impairments: moderate multilevel spondylosis, diabetes mellitus, rheumatoid 14 arthritis, status post rotator cuff injury, meniscal knee tear, and obesity. Id. At 15 step three, the ALJ determined that Plaintiff did not have an impairment or 16 combination of impairments that met or medically equaled the severity of a listed 17 impairment. Id. The ALJ then found Plaintiff had the RFC to perform light work 18 as defined in 20 C.F.R. § 404.1567(b), but stipulated: 19 20 The claimant can perform occasional postural activities but never climb ladders, ropes or scaffolds. The claimant should avoid more than moderate exposure to hazards (such as unprotected heights and dangerous moving machinery). ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 6 1 Tr. 27. 2 At step four, the ALJ found Plaintiff was incapable of performing past 3 relevant work as a corrections officer. Tr. 33. At step five, the ALJ found that, 4 considering Plaintiff’s age, education, past work experience, and RFC, as well as 5 testimony from a vocational expert (VE), there were jobs existing in significant 6 numbers in the national economy which Plaintiff could perform, such as a small 7 products assembler and a routing clerk. Tr. 33-34. 8 Based on the foregoing analysis, the ALJ concluded Plaintiff was not 9 disabled as defined in the Social Security Act from the date of amended onset 10 through the date of her decision. Tr. 34. On April 20, 2023, the Appeals Council 11 denied review, making the decision of the ALJ the final decision of the 12 Commissioner for purposes of judicial review. Tr. 6; see also 20 C.F.R. §§ 13 404.981, 422.210. 14 ISSUES 15 Plaintiff seeks judicial review of the Commissioner’s decision denying him 16 disability insurance benefits under Title II of the Social Security Act. Plaintiff 17 submits the following issues for this Court’s review: 18 19 1. Whether the ALJ’s decision to discredit Plaintiff’s physical symptom testimony was supported by specific, clear, and convincing evidence; and 20 ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 7 1 2. Whether the ALJ applied the correct legal standard in evaluating certified Physician Assistant (PA) Cameron Ritchie’s report. 2 3 ECF No. 7 at 1-2. 4 DISCUSSION 5 I. Physical Symptom Testimony 6 Plaintiff contends that the ALJ’s decision to discredit his physical symptom 7 testimony was unsupported by specific, clear, and convincing evidence. ECF No. 8 7 at 4-13. Broadly, Plaintiff advances three arguments related to this contention: 9 first, that the ALJ merely summarized the medical evidence without explaining 10 why it undermined Plaintiff’s allegations; second, that the ALJ failed to 11 contextualize reports showing improvement of Plaintiff’s symptoms with physical 12 therapy; and third, that the ALJ’s focus on Plaintiff’s recreational activities was 13 misplaced. Id. The Court finds that none of these contentions support reversal. 14 A. Legal Standard for Evaluating Symptom Testimony 15 An ALJ engages in a two-step analysis in deciding whether to credit a 16 claimant’s subjective symptom testimony. SSR 16-3p, 2016 WL 1119029, at *2. 17 “First, the ALJ must determine whether there is ‘objective medical evidence of an 18 underlying impairment which could reasonably be expected to produce the pain or 19 other symptoms alleged.’” Molina, 674 F.3d at 1112 (quoting Vasquez v. Astrue, 20 572 F.3d 586, 591 (9th Cir. 2009)). “The claimant is not required to show that [the ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 8 1 claimant’s] impairment ‘could reasonably be expected to cause the severity of the 2 symptom [the claimant] has alleged; [the claimant] need only show that it could 3 reasonably have caused some degree of the symptom.’” Vasquez, 572 F.3d at 591 4 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). 5 Second, “[i]f the claimant meets the first test and there is no evidence of 6 malingering, the ALJ can only reject the claimant’s testimony about the severity of 7 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 8 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 9 omitted). General findings are insufficient; rather, the ALJ must identify what 10 symptom claims are being discounted and what evidence undermines these claims. 11 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). “The clear and 12 convincing [evidence] standard is the most demanding required in Social Security 13 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 14 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 15 Factors to be considered in evaluating the intensity, persistence, and limiting 16 effects of a claimant’s symptoms include: (1) daily activities; (2) the location, 17 duration, frequency, and intensity of pain or other symptoms; (3) factors that 18 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 19 side effects of any medication an individual takes or has taken to alleviate pain or 20 other symptoms; (5) treatment, other than medication, an individual receives or has ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 9 1 received for relief of pain or other symptoms; (6) any measures other than 2 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 3 any other factors concerning an individual’s functional limitations and restrictions 4 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7-*8; 20 5 C.F.R. § 404.1529(c). The ALJ must “consider all of the evidence in an 6 individual’s record” in determining “how symptoms limit ability to perform work7 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 8 In Plaintiff’s case, the ALJ found that while some of his physical 9 impairments could be reasonably expected to produce his alleged symptoms, other 10 allegations regarding the intensity, persistence, and limiting effects of those 11 symptoms were inconsistent with the objective medical evidence and related 12 record evidence. Tr. 28. 13 B. 14 Plaintiff first argues that the ALJ did not properly consider th e objective 15 medical evidence supporting his claims. ECF No. 7 at 6. He claims that the ALJ 16 appropriately noted his allegations, but failed to distinguish between findings that 17 were supportive of his claims and those which were inconsistent with his 18 allegations. Id. at 7. He presses that this approach is inconsistent with the Ninth 19 Circuit’s decision in Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). 20 Consideration of the Medical Evidence In Lambert, the Ninth Circuit determined that the ALJ erred in rejecting a ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 10 1 claimant’s subjective symptom testimony because the ALJ failed to specifically 2 identify what portions of the claimant’s testimony he found not credible and failed 3 to explain what evidence specifically undercut that testimony. Id. The ALJ in 4 Lambert summarized the claimant’s medical evidence, and then offered big picture 5 four reasons for rejecting her claims: (1) her treatment was not of the kind one 6 would expect for a completely disabled individual; (2) the record reflected 7 significant gaps in her treatment history; (3) claimant’s use of medications did not 8 suggest more limiting impairments than those identified by the ALJ; and (4) that 9 medications had been relatively effective in controlling her symptoms. Id. at 1270. 10 The court held that these four “high-level” reasons were insufficient to support 11 discrediting the claimant’s subjective pain complaints, stating, “‘providing a 12 summary of medical evidence . . . is not the same as providing clear and 13 convincing reasons for finding the claimant’s symptom testimony not credible.’” 14 Id. at 1278 (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)). 15 As Defendant correctly argues, the ALJ’s decision here does not suffer from 16 the same defects as those in Lambert. Unlike the Lambert ALJ, who failed to 17 differentiate between supportive and non-supportive medical evidence, the ALJ 18 here explained why the objective medical and other record evidence did not fully 19 corroborate Plaintiff’s allegations of right shoulder pain, back pain, knee pain, and 20 arthritis. ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 11 1 As to the objective medical evidence of Plaintiff’s shoulder pain, the ALJ 2 reported: 3 4 5 6 7 The claimant continued to seek treatment for right shoulder pain after his alleged onset . . . However, the objective medical evidence is not consistent with any manipulative limitations . . . [Plaintiff] rated his pain as a two to three out of ten. He denied numbness or tingling. On exam, he had no edema, no tenderness to palpation, and he had 5/5 strength with pain on external rotation against resistance . . . His sensation was intact to light touch. Dr. Miller found the claimant did not have any significant rotator cuff injury or structural injuries which would require surgery. He recommended continued progression with physical therapy and home exercises on the shoulder. 8 9 Tr. 29 (emphasis added). 10 The foregoing is not just a summary, but an explanation for why the ALJ 11 found Plaintiff’s pain reports inconsistent with the medical record, which showed a 12 normal range of motion with pain against resistance, normal sensation, and no need 13 for surgery. Id. Whether or not Plaintiff agreed with these stated reasons, they 14 were specific, objective medical findings that the ALJ believed to undercut his 15 claims, not a mere synopsis of the medical records. Compare Smith v. Kijakazi, 14 16 F.4th 1108, 1111 (9th Cir. 2021) (holding an ALJ must not simply recite the 17 medical evidence). 18 The ALJ identified similar medical record evidence which contradicted 19 Plaintiff’s reports of back pain, leg pain, and diabetes mellitus with neuropathy. 20 The ALJ explained that after Plaintiff’s completion of physical therapy, h is ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 12 1 medical records noted that his lower back pain and knee discomfort “were all 2 limited in nature and he was able to resolve them without assistance,” and that he 3 did not require the use of a wheelchair or walker for a year. Tr. 29. The ALJ also 4 wrote: 5 6 7 8 On February 21, 2022, the claimant saw Cameron Ritchie, P.A.-C., an orthopedics specialist. On exam, the claimant walked with a normal, non-antalgic heel to toe gait. On the right, he had 4/5 strength in hip flexors, quadriceps, knee extensor, and knee flexion. He had 5/5 strength in all other muscles tested . . . [T]he objective findings of the evaluation, such as normal gait, and intact sensation, are not consistent with the claimant’s alleged severity of his limitations. 9 Tr. 30. 10 Later, the ALJ added that the Plaintiff “had no limp” during his diabetes 11 exam, id., and again emphasized his wife’s claims of his knee pain were 12 inconsistent with the overall objective medical evidence, noting that PA Ritchie’s 13 exam showing a normal gait. Tr. 32. Contrary to Plaintiff’s assertions, these 14 specific findings do not leave the Court guessing as to what medical evidence the 15 ALJ believed to contradict his symptom testimony. 16 Finally, the ALJ offered supportive medical evidence for why she was 17 rejecting Plaintiff’s symptom reports related to his rheumatoid arthritis. 18 Specifically, she explained that Plaintiff had no joint pain, swelling, edema, 19 clubbing, sensation loss, or weakness on exam in both February and September 20 2021; that his Sulfasalazine monotherapy appeared to be working; and that he “was ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 13 1 in clinical remission.” Tr. 31. The position of these findings within the ALJ’s 2 broader analysis—after the ALJ’s summary of Plaintiff’s self-reports and her 3 notation that his statements were inconsistent with the record evidence— 4 establishes that they were not offered as a mere summary of Plaintiff’s medical 5 record, but instead as undercutting his claims. As such, the Court finds that 6 Plaintiff’s case does not suffer from a Lambert style defect. 7 C. Physical Therapy Reports 8 Plaintiff also challenges the ALJ’s discussion of his improvement of back 9 and knee pain with physical therapy. ECF No. 7 at 9-12. According to Plaintiff, 10 his discharge from in-home therapy was not the end of his subjective back pain, 11 and he still could not walk or stand on a sustained basis. Id. at 11. He alleges that 12 the ALJ did not sufficiently explain why she was rejecting these symptom reports 13 on the basis of his physical therapy discharge or account for the fact that his 14 reported limitations were incompatible with light work. Id. at 11-12. 15 The Court disagrees with Plaintiff’s claim that the ALJ did not figure his 16 reports of being unable to stand or walk for continuous periods of time into her 17 report or that she rejected them without explanation. The ALJ accounted for 18 Plaintiff’s claim that his sciatica made “moving, walking, bending, stooping and 19 standing painful and sometimes forced him to use a wheelchair or walker,” Tr. 28, 20 ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 14 1 and noted that his wife had endorsed the same limitations, Tr. 31. She also 2 recounted his testimony that: 3 4 5 6 7 [H]e had neuropathy in his feet and could not feel his feet, and this resulted in him falling sometimes. The claimant testified that he could walk for a half of a city block and stand for 15 to 20 minutes before he needed to sit down. He stated that he used a scooter when available, and otherwise, walking around the store would cause an exacerbation of back pain for two to three days. The claimant testified he shifted positions frequently. He stated he spent 30 to 40 percent of his day sitting, 30 to 40 percent of his days on his feet, and the rest of the time, he was moving around, stretching. 8 Tr. 28. 9 Despite noting these claims, the ALJ determined that Plaintiff’s 10 improvements with physical therapy had mitigated some of these symptoms, 11 writing: 12 13 14 15 16 The claimant was discharged from home health physical therapy on April 26, 2021. It was found the claimant had met all of his goals, and he was noted to be independent with his home exercise program. He was able to safely negotiate the stairs that led from his home. He . . . did not feel that he required additional outpatient care. At this time, it was noted the [claimant] continued to get some low[er] back pain . . . [but] indicated that [this] [was] limited in nature, and he was able to resolve [it] without assistance . . . While the [claimant] was noted to be using a wheelchair and walker in January 2021, the claimant did not require their use for 12 months. 17 18 19 20 Tr. 29. The foregoing shows that the ALJ considered Plaintiff’s continued subjective pain complaints, but discounted them based on his improvement with ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 15 1 in-home patient therapy, self-reports of improvement, and desire not to pursue 2 outpatient care. Tr. 29. Plaintiff argues that the physical therapy evidence only 3 demonstrated that “he was no longer housebound by his pain.” ECF No. 7 at 11. 4 However, as the ALJ discussed, Plaintiff’s reports of improvement and choice not 5 to seek further outpatient treatment indicated that his symptoms were mitigated. 6 See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (an ALJ may reject 7 a claimant’s symptom reports when the claimant responded favorably to 8 conservative treatment, including physical therapy). Additionally, as discussed 9 above, the ALJ did not discount Plaintiff’s self-reports merely on his improvement 10 with physical therapy; she also appropriately found that some of his symptom 11 testimony was inconsistent with the objective medical record evidence. 12 Relatedly, the Court also disagrees with Plaintiff’s assertion that the ALJ 13 failed to account for his alleged back and leg pain limitations in finding him to be 14 capable of light work. Because the ALJ found Plaintiff’s symptom testimony 15 lacked credibility, she was not required to account for those symptoms in assessing 16 his RFC. See Marilyn P. v. Comm’r of Soc. Sec., C19-5703-MLP, 2021 WL 17 977713, at *4 (W.D. Wash. March 16, 2021) (“[T]he RFC is based only on 18 medically determinable impairments.”); see also Tr. 27 (noting that the RFC was 19 based on symptoms consistent with the objective medical evidence). Further, 20 although the ALJ found Plaintiff was capable of light work, she nevertheless ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 16 1 accommodated for Plaintiff’s claimed limitations in questioning the VE, who 2 testified that the jobs of small products assembler, marker, and routing clerk still 3 existed in sufficient numbers in the national economy for employees who needed 4 the option to alternate between sitting and standing every 30 to 60 minutes. Tr. 34, 5 62. Accordingly, the ALJ did not err in her discussion of how physical t herapy 6 mitigated Plaintiff’s symptoms or her determination of the RFC. 7 D. Recreational Activities 8 Next, Plaintiff argues that the ALJ improperly focused on his engagement in 9 certain recreational activities as a basis for finding his symptom testimony 10 unreliable. In her opinion, the ALJ stated that in May 2021, Plaintiff deep-water 11 snorkeled in the Bahamas while on vacation. Tr. 25, 31. She also stated that 12 Plaintiff reported that he enjoyed woodworking and made wooden flags weighing 13 less than ten pounds with assistance from his family and reported no hand 14 problems from that activity. Tr. 31. Additionally, the ALJ observed that Plaintiff 15 helped take care of his wheelchair-bound father-in-law and that he participated in 16 other household tasks including preparing quick meals, doing light chores like the 17 dishes and laundry, and shopping for groceries online. Id. 18 Plaintiff asserts that the ALJ should not have discussed these activities in 19 discrediting his symptom testimony because his self-reports were not inconsistent 20 ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 17 1 with his chosen recreational outlets and the ALJ failed to explain how these 2 activities were inconsistent with his symptoms. ECF No. 7 at 13-14. 3 The Court agrees with Plaintiff that the ALJ’s discussion of his snorkeling 4 and caretaking activities was inadequate. “[T]he ALJ must identify what 5 testimony is not credible and what evidence undermines the claimant’s complaint.” 6 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 7 81 F.3d 821, 834 (9th Cir. 1995)). It is insufficient for the ALJ to find that a 8 claimant’s activities are “inconsistent in some unspecified way” with his symptom 9 testimony. Id. Understandably, the ALJ might have believed it self-evident that 10 the activities of deep-water snorkeling and caretaking were inconsistent with 11 Plaintiff’s alleged symptoms. After all, it would not be an untoward inference to 12 find that one’s shoulder, leg, and knee pain would be exacerbated by those kinds of 13 physically intensive and demanding activities. But the ALJ did not explain why 14 she believed that those activities were inconsistent with Plaintiff’s reports, and the 15 Court cannot substitute its own judgment for the ALJ’s. Batson v. Comm’r of Soc. 16 Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). It also appears that these 17 activities had a temporal limitation; for instance, the evidence suggests that the 18 snorkeling was not a regular hobby of Plaintiff’s, but a one-time vacation activity 19 which likely did not last for a considerable period of time. See Ghanim, 763 F.3d 20 1165 (daily activities may support an adverse credibility finding “if a claimant is ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 18 1 able to spend a substantial part of his day engaged in pursuits involving the 2 performance of physical functions that are transferable to a work setting.”) 3 (quoting Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (emphasis added)). 4 However, such error was harmless, because, as discussed above, substantial 5 evidence—namely, objective medical evidence and reports of improvement with 6 conservative treatment, such as physical therapy—exists in support of the ALJ’s 7 credibility determination. Differently, the Court finds that the ALJ’s discussion of Plaintiff’s 8 9 woodworking hobby was supported by clear and convincing evidence. As the ALJ 10 explained, woodworking requires the use of one’s hands, which was inconsistent 11 with Plaintiff’s reported fine motor limitations and symptoms. Tr. 31. Because the 12 ALJ sufficiently explained why this hobby was inconsistent with Plaintiff’s alleged 13 symptom reports and the medical evidence suggested his arthritis was in clinical 14 remission at this stage, the Court finds the ALJ’s decision on this point was 15 supported by clear and convincing evidence. 16 II. Evaluation of PA Cameron Ritchie’s Report 17 Finally, Plaintiff challenges the ALJ’s discussion of PA Ritchie’s medical 18 report. PA Ritchie physically examined Plaintiff for his back pain on February 21, 19 2022. Tr. 1512. He recommended Plaintiff use a lumbar brace to help increase his 20 stamina and reduce pain and discussed with Plaintiff the importance of losing ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 19 1 weight and gaining core strength. Id. PA Ritchie also added: 2 [Plaintiff] is deciding if he should apply for Social Security [benefits] at this time because he cannot return to work as a correctional officer. He may benefit from a vocational counselor to help find [if] a suitable job is available. We will look into this and see what options he may have at this time. 3 4 5 Id. 6 In summarizing PA Ritchie’s report during her discussion of the medical 7 evidence, the ALJ wrote: 8 9 10 11 12 The undersigned finds his opinion to be somewhat persuasive, in that this opinion clearly establishes that the provider does not think the claimant is totally disabled but rather there is other work he can do, just not that of a correction officer. The undersigned also notes that the objective findings of the evaluation, such as a normal gait, and intact sensation, are not consistent with the claimant’s alleged severity of his limitations. Tr. 30. 13 Plaintiff presses that the ALJ’s analysis was erroneous for two reasons. ECF 14 No. 7 at 15-16. First, he claims that the ALJ improperly found it relevant that PA 15 Ritchie thought Plaintiff was not totally disabled, but capable of some work, even 16 though eligibility for Title II benefits does not require “total disability.” Id. at 15. 17 Second, he argues that PA Ritchie did not offer a functional assessment, so his 18 statement that Plaintiff was capable of some work “may have been based on a 19 belief that Plaintiff would be able to perform sedentary-type jobs,” which would 20 support a finding of disability under the Medical Vocational Guidelines. Id. ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 20 1 Defendant responds that it was reasonable for the ALJ to infer PA Ritchie’s 2 statement was consistent with a finding of non-disability because it indicated 3 Plaintiff was capable of performing other work in the national economy. ECF No. 4 9 at 11. Alternatively, Defendant argues that PA Ritchie’s statement was not a 5 medical opinion under the relevant regulations, but instead “other medical 6 evidence” which the ALJ was not required to evaluate the persuasiveness of, and 7 that therefore any error in doing so was harmless. Id. at 11-12. 8 The Court finds Defendant’s interpretation of the ALJ’s discussion of PA 9 Ritchie more persuasive. The Court does not take the ALJ’s mention of “total 10 disability” to mean that she believed Plaintiff needed to be completely 11 incapacitated in order to qualify for Social Security benefits. Tr. 30. In context, it 12 is clear that the ALJ was instead only making a finding that Plaintiff was capable 13 of some other work. Plaintiff somewhat concedes this point, but argues in the next 14 breath that the ALJ’s reliance on this analysis was misplaced because PA Ritchie 15 could have meant that Plaintiff was only capable of sedentary work, which would 16 have required a finding of disability. This argument is untenable. Even if PA 17 Ritchie’s examination notes were consistent with a finding that Plaintiff could only 18 perform sedentary work—and that argument is wholly speculative—the ALJ’s 19 recitation of that fact was, at bottom, harmless error. As discussed above, other 20 objective medical evidence supported Plaintiff’s ability to perform light work, ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 21 1 including the unchallenged opinions of other medical providers. See, e.g., Tr. 322 33 (finding the opinion of medical consultant Dr. Howard Platter persuasive, which 3 determined that Plaintiff was capable of light level work). Accordingly, the ALJ’s 4 error in mentioning that PA Ritchie noted Plaintiff could return to work, if it 5 existed at all, was harmless because it was otherwise supported by clear and 6 convincing evidence. 7 8 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes that 9 the ALJ’s decision is supported by substantial evidence and free from harmful 10 legal error. 11 ACCORDINGLY, IT IS HEREBY ORDERED: 12 1. Plaintiff’s motion seeking a reversal of the order of the Social Security 13 Commissioner (ECF No. 7) is denied. The final decision of the Social 14 Security Commissioner is AFFIRMED. 15 The District Court Executive is directed to enter judgment in favor of 16 17 Defendant, furnish copies to counsel, and CLOSE the file. DATED November 13, 2023. 18 19 THOMAS O. RICE United States District Judge 20 ORDER AFFIRMING DENIAL OF TITLE II BENEFITS ~ 22

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