Dorsey v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Graham Dorsey, No. CV-22-01297-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [14] 15 Plaintiff challenges the denial of his application for benefits under the Social 16 Security Act (“the Act”) by the Commissioner of the Social Security Administration 17 (“Commissioner”). The Court has reviewed Plaintiff’s opening brief (Doc. 11), the 18 Commissioner’s answering brief (Doc. 12), and Plaintiff’s reply (Doc. 15), as well as the 19 Administrative Record (Doc. 8, AR), and now affirms the Administrative Law Judge’s 20 (“ALJ”) decision. 21 I. Procedural History 22 Plaintiff filed an application for disability insurance benefits on July 29, 2019, 23 alleging disability beginning on September 20, 2016. (AR at 17.) After his claim was 24 denied at the initial and reconsideration phases of administrative review, he requested a 25 hearing. (Id.) On June 1, 2021, after a telephonic hearing, the ALJ issued an unfavorable 26 decision. (Id. at 17-32.)1 The Appeals Council later denied review. (Id. at 1-3.) 27 1 An ALJ denied Plaintiff’s prior application for disability benefits on September 21, 2016. (AR at 98-110.) Such a denial gives rise to a presumption of continuing non28 disability on a subsequent application, unless the claimant can show changed circumstances indicating a greater disability. Chavez v. Bowen, 844 F.2d 691, 693 (9th 1 II. The Sequential Evaluation Process and Judicial Review 2 To determine whether a claimant is disabled for purposes of the Act, the ALJ 3 follows a five-step process. 20 C.F.R. § 404.1520 (a). The claimant bears the burden of 4 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 5 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 6 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 7 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 8 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520 (a)(4)(ii). At 9 step three, the ALJ considers whether the claimant’s impairment or combination of 10 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 11 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520 (a)(4)(iii). If so, the claimant is automatically 12 found to be disabled. Id. At step four, the ALJ assesses the claimant’s residual functional 13 capacity (“RFC”) and determines whether the claimant is capable of performing past 14 relevant work. 20 C.F.R. § 404.1520 (a)(4)(iv). If not, the ALJ proceeds to the fifth and 15 final step, where she determines whether the claimant can perform any other work in the 16 national economy based on the claimant’s RFC, age, education, and work experience. 20 17 C.F.R. § 404.1520 (a)(4)(v). If not, the claimant is disabled. Id. 18 An ALJ’s factual findings “shall be conclusive if supported by substantial 19 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 20 the Commissioner’s disability determination only if it is not supported by substantial 21 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 22 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 23 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 24 evidence is susceptible to more than one rational interpretation, one of which supports the 25 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947 , 26 954 (9th Cir. 2002) (citations omitted). In determining whether to reverse an ALJ’s 27 decision, the district court reviews only those issues raised by the party challenging the 28 Cir. 1988). The ALJ concluded that Plaintiff made such a showing here. (AR at 20, 2627.) 1 decision. Lewis v. Apfel, 236 F.3d 503 , 517 n.13 (9th Cir. 2001). 2 III. The ALJ’s Decision 3 The ALJ found that Plaintiff had not engaged in substantial, gainful work activity 4 during the period between his alleged onset date and September 30, 2018, which was his 5 date last insured (“DLI”), and that Plaintiff had the following severe impairments as of his 6 DLI: “relapsing and remitting multiple sclerosis; lumbar degenerative disc disease; cervical 7 and thoracic degenerative disease with stenosis; obstructive sleep apnea; insomnia; 8 intermittent/migraine headaches; [and] post-traumatic stress disorder (PTSD).” (AR at 9 20.)2 Next, the ALJ concluded that Plaintiff’s impairments did not meet or medically equal 10 a listing. (Id. at 22-26.) Next, the ALJ calculated Plaintiff’s RFC as follows: 11 [T]he claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567 except he can never climb ladders, ropes 12 and/or scaffolds, can occasionally be exposed to vibrations, can never be exposed to unprotected heights and/or moving machinery parts, can never be 13 exposed to strobe lights and/or flashing lights, and requires a moderate noise work environment, as defined in the DOT and the SCO. He is able to 14 understand and remember simple instructions, make simple work related decisions, and carry-out simple instructions. He cannot perform work which 15 requires a specific production rate, such as assembly line work and/or hourly quota work. He can occasionally deal with changes in a routine work setting, 16 and can occasionally deal with supervisors, coworkers and/or the public. [17] (Id. at 26.) As part of this RFC determination, the ALJ evaluated Plaintiff’s symptom [18] testimony, concluding that Plaintiff’s “medically determinable impairments could [19] reasonably be expected to cause the alleged symptoms; however, the claimant’s statements [20] concerning the intensity, persistence and limiting effects of these symptoms are not entirely [21] consistent with the medical evidence and other evidence in the record for the reasons [22] explained in this decision.” (Id. at 27-30.) The ALJ also clarified that “[a]s for medical [23] opinion(s) and prior administrative medical finding(s), in this case there are no relevant [24] opinions in the record.” (Id. at 30.) [25] Based on the testimony of a vocational expert, the ALJ concluded that although [26] 27 2 The ALJ also noted that Plaintiff presented evidence of high blood pressure, unspecified substance abuse, gastroesophageal reflux disease, hyperlipidemia, a 28 neurogenic bladder condition, obesity, a history of traumatic brain injury, vertigo, anxiety, and hypervigilance. (AR at 21-22.) 1 Plaintiff could not perform any past relevant work, Plaintiff could perform other jobs that 2 exist in significant numbers in the national economy, including hospital cleaner, bagger, 3 and floor waxer. (Id. at 30-32.) Thus, the ALJ concluded that Plaintiff is not disabled. (Id. 4 at 32.) 5 IV. Discussion 6 Plaintiff raises four issues on appeal: “1. Did the ALJ commit harmful legal error 7 in failing to address, thereby rejecting, Plaintiff’s treating physician’s medical statement? 8 2. Is the ALJ’s failure to provide any rationale in response to Plaintiff’s motion to reopen 9 legal error? 3. Is the ALJ’s failure to account for Plaintiff’s ‘consistent and supported 10 subjective statements’ in Plaintiff’s RFC finding . . . reversible error? 4. Does the ALJ’s 11 failure to consider the Veterans Administration’s disability rating require remand for 12 further administrative proceedings?” (Doc. 11 at 4.) As a remedy, Plaintiff seeks a remand 13 for a determination of benefits or, in the alternative, for further proceedings. (Id. at 18.) 14 A. Dr. Subbarao 15 1. Standard of Review 16 In January 2017, the SSA amended the regulations concerning the evaluation of 17 medical opinion evidence. See Revisions to Rules Regarding Evaluation of Medical 18 Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Because the new regulations apply to 19 applications filed on or after March 27, 2017, they are applicable here. 20 The new regulations, which eliminate the previous hierarchy of medical opinions, 21 provide in relevant part as follows: 22 We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical [23] finding(s), including those from your medical sources . . . . The most 24 important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability [25] . . . and consistency . . . . [26] 20 C.F.R. § 416 .920c(a).3 Regarding the “supportability” factor, the new regulations [27] 3 Other factors that may be considered by the ALJ in addition to supportability and 28 consistency include the provider’s relationship with the claimant, the length of the treatment relationship, the frequency of examinations, the purpose and extent of the 1 explain that the “more relevant the objective medical evidence and supporting explanations 2 presented by a medical source are to support his or her medical opinion(s), . . . the more 3 persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). Regarding the 4 “consistency” factor, the “more consistent a medical opinion(s) . . . is with the evidence 5 from other medical sources and nonmedical sources in the claim, the more persuasive the 6 medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2) 7 Recently, the Ninth Circuit confirmed that the “recent changes to the Social Security 8 Administration’s regulations displace our longstanding case law requiring an ALJ to 9 provide ‘specific and legitimate’ reasons for rejecting an examining doctor’s opinion.” 10 Woods v. Kijakazi, 32 F.4th 785 , 787 (9th Cir. 2022). Thus, “the former hierarchy of 11 medical opinions—in which we assign presumptive weight based on the extent of the 12 doctor’s relationship with the claimant—no longer applies. Now, an ALJ’s decision, 13 including the decision to discredit any medical opinion, must simply be supported by 14 substantial evidence.” Id. With that said, “[e]ven under the new regulations, an ALJ cannot 15 reject an examining or treating doctor’s opinion as unsupported or inconsistent without 16 providing an explanation supported by substantial evidence. The agency must articulate 17 how persuasive it finds all of the medical opinions from each doctor or other source and 18 explain how it considered the supportability and consistency factors in reaching these 19 findings.” Id. at 792 (cleaned up). Although an “ALJ can still consider the length and 20 purpose of the treatment relationship, the frequency of examinations, the kinds and extent 21 of examinations that the medical source has performed or ordered from specialists, and 22 whether the medical source has examined the claimant or merely reviewed the claimant’s 23 records . . . the ALJ no longer needs to make specific findings regarding these relationship 24 factors . . . .” Id. 25 2. Dr. Subbarao’s Statement 26 On July 16, 2012, VA staff neurologist Jauhtai Joseph Cheng, M.D. completed an 27 “Initial Evaluation of Residuals of Traumatic Brain Injury (I – TBI) Disability Benefits [28] treatment relationship, and the specialization of the provider. 20 C.F.R. § 416 .920c(c). 1 Questionnaire.” (AR at 300-13.) When prompted to address the “impact of each of the 2 [Plaintiff’s] residual conditions attributable to a traumatic brain injury,” Dr. Cheng 3 remarked: “[F]requent headaches (3-4 times/week) that he needs to rest in a dark quiet 4 room for headache to subside.” (Id. at 310.) 5 On May 23, 2018, VA psychiatrist Bruno Subbarao, D.O., wrote in a progress note 6 that Plaintiff suffers from headaches “every other day” for “a few hours.” (Id. at 1098.) 7 Dr. Subbarao noted that “relieving factors” included Fioricet medication. (Id.) Dr. 8 Subbarao also stated that, in the past, Plaintiff had “[l]ost jobs” because his headaches 9 “would make him stay home” from work. (Id.) 10 As noted, the ALJ did not analyze Dr. Subbarao’s statement as part of the decision. 11 Instead, the ALJ stated that “[a]s for medical opinion(s) and prior administrative medical 12 finding(s), in this case there are no relevant opinions in the record.” (Id. at 30.) 13 3. The Parties’ Arguments 14 Plaintiff argues Dr. Subbarao’s statement qualifies as a medical opinion and that the 15 ALJ thus erred by “ignor[ing] Dr. Subbarao’s medical statement without even comment.” 16 (Doc. 11 at 6-7.) Plaintiff also cites, accidentally it seems, Dr. Cheng’s statement from 17 2012 that Plaintiff would need to “rest in a dark, quiet room” during a headache and asserts 18 that “needing to be permitted to rest in a dark, quiet room, on average every other day for 19 a few hours is a reasonable functional limitation as determined by Dr. Subbarao.” (Id. at 20 6-7.) 21 In response, the Commissioner argues that Plaintiff conflated Dr. Subbarao’s and 22 Dr. Cheng’s statements and contends that Dr. Subbarao’s statement does not qualify as a 23 medical opinion because it fails to address what Plaintiff could still do despite his 24 impairments. (Doc. 12 at 5-7.) In the alternative, the Commissioner argues that any error 25 was harmless “as the remaining evidence from Dr. Subbarao’s treatment of Plaintiff’s 26 headaches shows that they continued to improve.” (Id. at 7.) 27 In reply, Plaintiff contends that his citation to Dr. Cheng’s note was a “scrivener’s 28 error.” (Doc. 15 at 1 n.1.) However, Plaintiff then attempts to broaden the scope of his 1 argument by asserting that “the ALJ’s failure to address Drs. Bruno Subbarao or Jauhtai 2 Cheng’s medical opinions remains legal error.” (Id. at 1, emphasis added.) Plaintiff asserts 3 that Drs. Subbarao’s and Cheng’s statements qualify as medical opinions and that an ALJ 4 should “broadly” consider any statement regarding what a claimant can do. (Id. at 3.) 5 4. Analysis 6 As noted, Plaintiff at times conflates Dr. Subbarao’s May 2018 treatment note (AR 7 at 1098) with a July 2012 medical opinion from Dr. Cheng (id. at 310). However, in his 8 opening brief, Plaintiff did not challenge the ALJ’s failure to consider Dr. Cheng’s opinion. 9 Instead, Plaintiff’s sole argument was that “the ALJ ignored Dr. Subbarao’s medical 10 statement without even comment.” (Doc. 11 at 7.) Thus, Plaintiff has waived any 11 challenge to the ALJ’s failure to provide reasons for accepting or rejecting Dr. Cheng’s 12 opinion. Thacker v. Comm’r of Soc. Sec., 2012 WL 1978701 , *11 (E.D. Cal. 2012) (noting 13 that, as a “general rule, issues raised for the first time in a reply brief are waived” and 14 collecting cases); Nicoleta S. v. Saul, 2021 WL 663122 , *8 (C.D. Cal. 2021) (same); 15 Sayavong v. Astrue, 2012 WL 169767 , *9 (E.D. Cal. 2012) (same). See also Carmickle v. 16 Comm’r of Soc. Sec. Admin., 533 F.3d 1155 , 1161 n.2 (9th Cir. 2008). 17 Turning to Dr. Subbarao, the Court finds no error in the ALJ’s failure to treat the 18 assertions in Dr. Subbarao’s May 2018 treatment note as a medical opinion. A “medical 19 opinion” is defined by regulation as follows: [20] A medical opinion a statement from a medical source about what you can 21 still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the following abilities: . . . 22 (i) Your ability to perform physical demands of work activities, such as 23 sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as 24 reaching, handling, stooping, or crouching); (ii) Your ability to perform mental demands of work activities, such as understanding; remembering; [25] maintaining concentration, persistence, or pace; carrying out instructions; or 26 responding appropriately to supervision, co-workers, or work pressures in a work setting; (iii) Your ability to perform other demands of work, such as [27] seeing, hearing, or using other senses; and (iv) Your ability to adapt to 28 environmental conditions, such as temperature extremes or fumes. [1] 20 C.F.R. § 404.1513 (a)(2). The statement in Dr. Subbarao’s treatment note does not 2 qualify as a “medical opinion” under this definition because it does not address Plaintiff’s 3 functionality and merely describes the frequency (i.e., “every other day” for a “few hours”) 4 of Plaintiff’s headaches. (AR at 1098.) Even accepting the treatment note at face value, it 5 does not address the extent to which Plaintiff’s headaches would affect Plaintiff’s ability 6 to work. In a related vein, although the treatment note stated that, in the past, Plaintiff had 7 “[l]ost jobs” because his headaches “would make him stay home” from work (id.), this 8 historical observation was not a statement about “what [Plaintiff] can do despite [his] 9 impairment(s)” and whether Plaintiff would be restricted based on his current condition. 10 To be clear, the Court does not discount the possibility that a statement in a treatment 11 note could qualify as a “medical opinion” for purposes of the Social Security regulations. 12 Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (“Marsh further argues that the ALJ 13 erred by not mentioning Dr. Betat’s SOAP notes in its written decision. We agree. . . . 14 Here, the ALJ gave no reasons for not mentioning Dr. Betat or his SOAP notes. That was 15 error.”). Nevertheless, the particular statement here does not so qualify. 16 B. Requests to Re-Open 17 1. Plaintiff’s Requests to Reopen 18 In August and November 2019 disability reports, Plaintiff wrote: “Please reopen all 19 prior claims.” (AR at 239, 255.) During the hearing, Plaintiff’s counsel argued that 20 Plaintiff had been disabled since 2013. (Id. at 42-43.) In the decision, the ALJ stated: 21 “With regard to the previously adjudicated period, the principle of res judicata applies to 22 the current application, and all denials of prior applications are final and are not reopened 23 herein.” (Id. at 18.) 24 2. The Parties’ Arguments 25 Plaintiff argues the ALJ erred by failing “to provide any rationale in response to 26 Plaintiff’s motion to reopen” and that “[d]isability claimants have a due process right to 27 move to have their claims reopened” so long as those requests are timely and the claimant 28 shows “good cause.” (Doc. 11 at 9.) Plaintiff acknowledges that “[a] reviewing Court can 1 at times be unable to review an ALJ’s refusal to reopen a prior claim determination” but 2 argues that this prohibition is inapplicable here because (1) “the ALJ made no such denial” 3 in this case beyond summarily asserting that all prior denials were final and that res 4 judicata applied; (2) “the Social Security Act in no way preempts a claimant’s right to due 5 process under the United States Constitution”; and (3) the ALJ was obligated to state his 6 rationale if he believed Plaintiff had not shown good cause. (Id. at 9-12.) 7 In response, the Commissioner argues that Plaintiff did not properly preserve his 8 reopening request because “neither Plaintiff nor his attorney at the ALJ hearing made any 9 motion for re-opening of his prior application” and Plaintiff’s attorney waived a formal 10 reading of the issues, which shows he “understood and agreed” that the sole issue to be 11 considered was Plaintiff’s entitlement to benefits under his August 2019 application. 12 (Doc. 12 at 9.) The Commissioner contends that Plaintiff’s preservation argument “relies 13 solely on two brief statements submitted at the end of disability report documents earlier 14 in the disability appeals process.” (Id.) Alternatively, the Commissioner argues that 15 “[d]espite Plaintiff’s lack of action in requesting a reopening of his prior application, the 16 ALJ did make a finding in his decision not to reopen any of Plaintiff’s prior claims.” (Id. 17 at 10.) According to the Commissioner, this finding is not subject to judicial review 18 “[b]ecause Plaintiff has not raised a viable constitutional challenge” to the decision. (Id.) 19 In reply, Plaintiff argues that he adequately preserved his re-opening request by 20 asserting it in his disability reports and that, at any rate, his counsel’s assertion during the 21 hearing that he has been disabled since 2013 qualified as an implicit request to re-open. 22 (Doc, 15 at 4-5.) On the merits, Plaintiff reiterates his contention that the ALJ erred by 23 failing to provide a rationale for denying the reopening request. (Id. at 5.) Plaintiff asserts 24 that “due process demands the ALJ give reasons for denying Plaintiff’s motions to reopen” 25 and accuses the Commissioner of “fail[ing] to respond with anything more than post-hoc 26 rationalization that Plaintiff did not establish good cause for reopening Plaintiff’s prior 27 determinations.” (Id. at 5-6.) 28 … 1 3. Analysis 2 Even assuming that the challenge is otherwise preserved, the Court agrees with the 3 Commissioner that it lacks jurisdiction to review Plaintiff’s challenge to the denial of his 4 reopening request. “The Social Security Act grants to district courts jurisdiction to review 5 only ‘final decisions’ of the Commissioner.” Klemm v. Astrue, 543 F.3d 1139, 1144 (9th 6 Cir. 2008) (quoting 42 U.S.C. § 405 (g)). “Because a denial of a motion to reopen is a 7 discretionary decision, it is not final and, thus, is not generally reviewable by a district 8 court. The Supreme Court, however, [has] recognized an exception to this rule . . . . 9 [F]ederal subject matter jurisdiction exists where the denial of a petition to reopen is 10 challenged on constitutional grounds. We understand [that] exception to apply to any 11 colorable constitutional claim of due process violation that implicates a due process right 12 either to a meaningful opportunity to be heard or to seek reconsideration of an adverse 13 benefits determination.” Id. (cleaned up). Here, although Plaintiff asserts in conclusory 14 fashion that he is raising a due process-based constitutional challenge to the denial of his 15 reopening request, he does not develop his constitutional claim in any detail. More is 16 required under Ninth Circuit law. Klemm, 543 F.3d at 1144 (“A constitutional claim is 17 colorable if it is not wholly insubstantial, immaterial, or frivolous. A mere allegation of a 18 due process violation is not a colorable constitutional claim. Rather, the claim must be 19 supported by facts sufficient to state a violation of substantive or procedural due process.”) 20 (cleaned up). 21 Additionally, although the parties’ briefing on this issue is sparse, the Court’s 22 review of the relevant Ninth Circuit caselaw suggests that the circumstances of this case 23 are easily distinguishable from the circumstances in which claimants have been found to 24 have asserted a colorable constitutional challenge to the denial of a reopening request. See, 25 e.g., Klemm, 543 F.3d at 1144-45 (“An allegation of mental impairment can form the basis 26 of a colorable constitutional claim if the mental impairment prevented the claimant from 27 understanding how to contest the denial of benefits.”); Evans v. Chater, 110 F.3d 1480 , 28 1483 (9th Cir. 1997) (“Evans alleged that during the time of his 1990 and 1991 1 applications, he suffered from a mental impairment, which, under SSR 91–5p, amounted 2 to good cause to reopen the prior denials. This allegation, together with the fact that he 3 was not represented by counsel throughout these earlier proceedings, is sufficient to assert 4 a colorable constitutional claim.”); Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 5 1990) (misleading appeals notice qualified as colorable due process violation that 6 authorized judicial review). Here, Plaintiff does not contend there was any impediment to 7 his assertion of a reopening request that might raise due process concerns. Instead, he 8 simply contends that the ALJ’s explanation for the denial of his request was insufficiently 9 detailed. 10 The only case the Court has been able to find that addresses a somewhat analogous 11 claim is Dexter v. Colvin, 731 F.3d 977 (9th Cir. 2013). There, even though the claimant 12 proffered three specific reasons in support of a “late request for hearing,” and all three of 13 those reasons were listed in the “SSA regulations” as examples of circumstances where 14 good cause may exist, the ALJ “did not acknowledge” two of those reasons in the course 15 of denying the request. Id. at 980 . Under those circumstances, the Ninth Circuit concluded 16 that “[i]t thus appears that the ALJ did not consider Dexter’s potentially valid reasons for 17 her delay. Due process requires as much.” Id. Here, in contrast, Plaintiff did not purport 18 to identify any specific reason for the reopening request—the two pre-hearing requests 19 tucked into the disability reports were devoid of reasoning and Plaintiff’s counsel’s 20 “implicit” reopening request during the hearing consisted of the bare assertion that Plaintiff 21 has been disabled since 2013. Thus, unlike in Dexter, there is no reason to suspect the ALJ 22 somehow violated due process by ignoring and refusing to acknowledge a facially plausible 23 reason for reopening. Cf. Dragoo v. Comm’r of Soc. Sec. Admin., 2020 WL 1703628 , *2 24 (D. Ariz. 2020) (“In Dexter, the Court of Appeals found a due process violation where an 25 ALJ had completely failed to address a claimant’s facially legitimate reasons for filing an 26 untimely request for a hearing. The ALJ here, however, committed no similar error. . . . 27 Despite Plaintiff having a full and fair opportunity to raise any additional objections, he 28 did not. Thus, the Court finds no violation of Plaintiff’s due process rights.”). 1 C. Symptom Testimony 2 1. Standard of Review 3 An ALJ must evaluate whether the claimant has presented objective medical 4 evidence of an impairment that “could reasonably be expected to produce the pain or other 5 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citations 6 omitted). If so, “an ALJ may not reject a claimant’s subjective complaints based solely on 7 a lack of medical evidence to fully corroborate the alleged severity of pain.” Burch v. 8 Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Instead, the ALJ may “reject the claimant’s 9 testimony about the severity of [the] symptoms” only by “providing specific, clear, and 10 convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487 , 488–89 (9th 11 Cir. 2015). In this analysis, the ALJ may look to “(1) ordinary techniques of credibility 12 evaluation, such as the claimant’s reputation for lying, prior inconsistent statements 13 concerning the symptoms, and other testimony by the claimant that appears less than 14 candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a 15 prescribed course of treatment; and (3) the claimant’s daily activities.” Tommasetti v. 16 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citing Smolen v. Chater, 80 F.3d 1273 , 1284 17 (9th Cir. 1996)). 18 2. The ALJ’s Evaluation Of Plaintiff’s Symptom Testimony 19 The ALJ summarized Plaintiff’s symptom testimony as follows: “The claimant is 20 alleging disability related to PTSD, multiple traumatic brain injuries, herniated discs, 21 depression, anxiety, hypervigilance, sleep apnea with CPAP use, chronic migraines, high 22 blood pressure, and multiple sclerosis (MS). Because of these conditions, he reportedly 23 experiences pain, inability to focus and maintain attention, poor memory and blurred 24 vision. He testified that he uses a cane for long walks. He also testified that his MS was 25 suspected two years prior to diagnosis. He testified to bouts of vertigo and urinary 26 incontinence. Claimant testified that he has a driver’s license with no restrictions but is 27 unable to drive due to brain fog and blurred vision.” (AR at 27.) The ALJ declined to fully 28 credit this testimony, explaining that although Plaintiff’s “medically determinable 1 impairments could reasonably be expected to cause the alleged symptoms . . . [Plaintiff’s] 2 statements concerning the intensity, persistence and limiting effects of these symptoms are 3 not entirely consistent with the medical evidence and other evidence in the record for the 4 reasons explained in this decision.” (Id. at 27-28.) 5 In support of this conclusion, the ALJ provided a detailed summary of the evidence, 6 noting that although images of Plaintiff’s spine confirmed some degree of degenerative 7 disc disease, his examinations showed normal strength and mobility and he reported 8 improvement with physical therapy. (Id. at 28.) Next, the ALJ noted that Plaintiff’s pain 9 complaints “were usually related to strenuous activity, such as lifting heavy weights in the 10 gym or crashing his motorcycle.” (Id. at 28, citations omitted.) Next, the ALJ noted that 11 Plaintiff reported improvement from chiropractic treatment. (Id.) Next, as for Plaintiff’s 12 relapsing-remitting MS diagnosis, the ALJ noted that Plaintiff exhibited normal strength, 13 no focal deficits, and a normal gait in examinations before his DLI. (Id.) The ALJ also 14 noted that Plaintiff’s MS improved with infusion treatment, such that Plaintiff reported 15 being “able to volunteer, travel by himself, run a support group, exercise in the gym, and 16 go on hikes.” (Id.) Next, the ALJ discussed Plaintiff’s daily activities, which included 17 riding a motorcycle, lifting weights, and engaging in cardiovascular exercise at the gym, 18 and concluded that such activities were “inconsistent with disabling neuromuscular and 19 musculoskeletal problems during the relevant period.” (Id.) The ALJ also stated that 20 Plaintiff’s use of a cane was “unfounded” before his DLI, “as treatment records indicated 21 a normal, unassisted gate in late 2018, and the claimant was not fitted for and instructed in 22 the use of a cane until May 2019.” (Id.) 23 Regarding Plaintiff’s headaches, the ALJ noted that Plaintiff “reported headaches 24 that occurred every other day, lasted only a few hours, responded favorably to medication, 25 and consisted mostly of ‘light throbbing’ symptoms.” (Id. at 29.) The ALJ also noted that 26 Plaintiff reported headaches in 2018 that had occurred for years and had not recently 27 changed, “suggesting no functional deterioration had occurred.” (Id.) Thus, the ALJ 28 concluded that Plaintiff’s “reported headaches are not frequent or severe enough to warrant 1 disabling off-task and attendance limitations.” (Id.) 2 Regarding Plaintiff’s mental impairments, including complaints of PTSD and 3 cognitive or memory deficits resulting from MS, the ALJ stated that “[p]sychiatric 4 evaluations and mental status examinations during the relevant period found no significant 5 cognitive impairment or memory deficits that would support his allegations of ‘brain fog’ 6 from MS, or any serious mental dysfunction from PTSD and depression, providing support 7 for [the] determination that he can do simple work.” (Id.) The ALJ also noted that 8 Plaintiff’s social functioning was “characterized by a pleasant and cooperative attitude 9 during clinical encounters and demonstrated by his ability to facilitate support groups for 10 others, [and is] adequate for occasional workplace interactions.” (Id.) Additionally, the 11 ALJ found Plaintiff’s reports of attention and memory deficits to be unsupported, noting 12 Plaintiff’s ability to concentrate and respond to questions at the hearing, his ability to give 13 a “coherent history” to a medical professional on one occasion, and his volunteer work 14 with support groups and the Wounded Warrior project. (Id. at 29-30.) 15 3. The Parties’ Arguments 16 Plaintiff argues that “[t]he ALJ in no way found Plaintiff not credible.” (Doc. 11 at 17 12.) Operating from this premise, Plaintiff argues that the ALJ erred by failing “to account 18 for Plaintiff’s ‘consistent and supported subjective statements’ in Plaintiff’s RFC.” (Id.) 19 More specifically, Plaintiff argues that the RFC should have included a “limitation 20 recognizing Plaintiff’s necessity to take frequent headache breaks” as well as limitations 21 related to Plaintiff’s urinary dysfunction. (Id. at 12-16.) 22 In response, the Commissioner argues that “the ALJ’s reasons for discounting 23 Plaintiff’s statements regarding his physical and mental limitations were supported by 24 substantial evidence, and Plaintiff has failed to identify reversible error.” (Doc. 12 at 11.) 25 More specifically, as for Plaintiff’s headaches, the Commissioner argues that “[t]he ALJ 26 thoroughly discussed Plaintiff’s headaches—first finding that Plaintiff’s headaches 27 constituted a severe impairment and then after a full review of the evidence, properly 28 finding that Plaintiff’s headaches did not cause functional limitations to the degree that 1 Plaintiff alleged.” (Id. at 12.) As for Plaintiff’s allegations of urinary dysfunction, the 2 Commissioner notes that the ALJ cited records in which Plaintiff repeatedly denied urinary 3 symptoms and only reported such problems after his DLI. (Id. at 13.) 4 In reply, Plaintiff argues that “[t]he ALJ did not provide clear and convincing 5 reasons for rejecting Plaintiff’s credible testimony by concluding Plaintiff is less limited 6 than alleged.” (Doc. 15 at 6.) As for his headaches, Plaintiff argues they “are frequent and 7 severe enough to warrant disabling off-task and attendance limitations and the ALJ 8 provided no reason for rejecting Plaintiff’s credible testimony.” (Id. at 7.) As for his 9 urinary dysfunction, Plaintiff argues that “reporting urinary issues after [his] insured status 10 lapsing does not establish such issues did not exist prior to [his] insured status lapsing” and 11 accuses the Commissioner of “supplant[ing] the role of ALJ” by providing post hoc 12 rationalizations for the ALJ’s decision. (Id. at 7-8.) 13 4. Analysis 14 Plaintiff is not entitled to reversal based on his third assignment of error. As an 15 initial matter, this marks another instance where Plaintiff improperly attempted, in his reply 16 brief, to expand upon the argument he raised in his opening brief. In his opening brief, 17 Plaintiff summarized his third assignment of error as follows: “Is the ALJ’s failure to 18 account for Plaintiff’s ‘consistent and supported subjective statements’ in Plaintiff’s RFC 19 finding . . . reversible error?” (Doc. 11 at 4.) Plaintiff then argued that “[t]he ALJ in no 20 way found Plaintiff not credible” and suggested that, because the ALJ had deemed his 21 symptom testimony credible, the ALJ was required to incorporate his alleged symptoms 22 into the RFC (and erred by failing to do so). (Id. at 12-16.) However, in his reply brief, 23 Plaintiff changed the heading of his third assignment of error to the following: “The ALJ 24 did not provide clear and convincing reasons for rejecting Plaintiff’s credible testimony by 25 concluding Plaintiff is less limited than alleged.” (Doc. 15 at 6.) This is a much different 26 argument than the argument Plaintiff raised in his opening brief, and as a result it is 27 forfeited. Thacker, 2012 WL 1978701 at *11 (E.D. Cal. 2012); Carmickle, 533 F.3d at 28 1161 n.2. 1 The argument that Plaintiff raised in his opening brief lacks merit. Although 2 Plaintiff asserts without citation that “[t]he ALJ in no way found Plaintiff not credible” 3 (Doc. 11 at 12), this premise is inaccurate. The ALJ made an express finding that Plaintiff’s 4 symptom testimony was less than fully credible because Plaintiff’s “statements concerning 5 the intensity, persistence and limiting effects of these symptoms are not entirely consistent 6 with the medical evidence and other evidence in the record for the reasons explained in this 7 decision.” (AR at 27-28.) The ALJ then identified multiple reasons for this adverse 8 credibility finding, including that some of Plaintiff’s symptom testimony was inconsistent 9 with the objective medical evidence; that some of Plaintiff’s claimed symptoms improved 10 with treatment and/or were controlled by medication; that some of Plaintiff’s claimed 11 symptoms were inconsistent with Plaintiff’s activities of daily living, including riding a 12 motorcycle, lifting weights, and engaging in cardiovascular exercise at the gym; and that 13 Plaintiff made “unfounded” statements about needing to use a cane before the DLI. (Id. at 14 28-29.) Given this overall adverse credibility finding, which Plaintiff does not 15 acknowledge (let alone challenge), the ALJ was not required to incorporate all of Plaintiff’s 16 claimed symptoms into the RFC.4 17 Finally, even if the argument raised in Plaintiff’s reply brief weren’t forfeited, it 18 4 To the extent Plaintiff’s position is that the ALJ needed to go through each one of his claimed symptoms and provide specific, clear and convincing reasons for rejecting his 19 testimony regarding that symptom, any such argument lacks merit. Plaintiff cites no case endorsing such a rule, which would be inconsistent with the principle that an ALJ may 20 utilize “ordinary techniques of credibility evaluation” when evaluating a claimant’s symptom testimony. Tommasetti, 533 F.3d at 1039 . A determination that a witness has 21 testified untruthfully on one topic ordinarily entitles a factfinder to disregard other portions of that witness’s testimony. 9th Cir. Model Jury Ins. 1.14 (“[I]f you decide that a witness 22 has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said.”). Such a rule would also be inconsistent with the 23 principle that any error in an ALJ’s evaluation of a claimant’s symptom testimony is harmless when (as here) the ALJ identifies multiple other specific, clear and convincing 24 reasons for making an adverse credibility finding. See, e.g., Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (“[S]everal of our cases have held that an ALJ’s error was 25 harmless where the ALJ provided one or more invalid reasons for disbelieving a claimant’s testimony, but also provided valid reasons that were supported by the record.”); Carmickle, 26 533 F.3d at 1162-63 (“Because we conclude that two of the ALJ’s reasons supporting his adverse credibility finding are invalid, we must determine whether the ALJ’s reliance on 27 such reasons was harmless error. . . . [T]he relevant inquiry in this context is not whether the ALJ would have made a different decision absent any error, it is whether the ALJ’s 28 decision remains legally valid, despite such error. . . . Here, the ALJ’s decision finding Carmickle less than fully credible is valid, despite the errors identified above.”). 1 would fail on the merits. As for Plaintiff’s headache-related testimony, the ALJ noted that 2 Plaintiff’s migraines responded favorably to medication. (AR at 23, 29.) This rationale, 3 which was supported by substantial evidence (id. at 1428, 1442, 1483, 1487), constituted 4 a specific, clear and convincing reason for discounting Plaintiff’s testimony on that topic. 5 Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“[E]vidence of medical 6 treatment successfully relieving symptoms can undermine a claim of disability.”); Morris 7 v. Berryhill, 358 F. Supp. 3d 875, 884 (D. Ariz. 2019) (“This was a clear and convincing 8 reason for finding plaintiff’s symptom statements less than credible because in numerous 9 treatment notes, plaintiff reported that she was doing well, found her medications 10 beneficial, and had no side effects from her medication.”). Similarly, as for Plaintiff’s 11 urology-related testimony, the ALJ stated that Plaintiff “denied urinary symptoms at many 12 relevant examinations and only began reporting problems with urinary urgency after 13 expiration of his insured status.” (AR at 21.) This rationale, which was supported by 14 substantial evidence (id. at 387 [“denied urinary prob[l]em”], 722, 1824, 1840), also 15 constituted a specific, clear and convincing reason for discounting Plaintiff’s testimony on 16 that topic. Tommasetti, 533 F.3d at 1039 . 17 D. VA Rating 18 1. Standard of Review 19 Under the old SSA regulations, an ALJ was required to provide “persuasive, 20 specific, valid reasons” for rejecting a VA disability rating. McCartey v. Massanari, 298 21 F.3d 1072, 1076 (9th Cir. 2002). However, for claims (like Plaintiff’s) filed on or after 22 March 27, 2017, this is no longer the rule. Kitchens v. Kijakazi, 2023 WL 5965704 , *4 23 (9th Cir. 2023) (“Put simply, the 2017 regulations removed any requirement for an ALJ to 24 discuss another agency’s rating. Thus, it was not error for the ALJ to exclude Kitchen’s 25 VA disability rating from her analysis.”). The new regulations provide in relevant part as 26 follows: [27] Other governmental agencies and nongovernmental entities . . . such as the 28 Department of Veterans Affairs . . . make disability . . . decisions for their own programs using their own rules. Because a decision by any other 1 governmental agency or a nongovernmental entity about whether you are disabled . . . is based on its rules, it is not binding on us and is not our decision [2] about whether you are disabled . . . under our rules. Therefore, in claims 3 filed . . . on or after March 27, 2017, we will not provide any analysis in our determination or decision about a decision made by any other governmental [4] agency or a nongovernmental entity about whether you are disabled . . . . 5 However, we will consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity’s decision that we [6] receive as evidence in your claim in accordance with § 404.1513(a)(1) 7 through (4). [8] 20 C.F.R. § 404.1504 . [9] 2. Plaintiff’s VA Rating [10] In May 2013, the VA concluded that Plaintiff’s “service-connected disability of [11] PTSD renders him unable to secure and maintain substantially gainful employment.” (AR [12] at 299.) [13] 3. The Parties’ Arguments [14] Plaintiff argues that although the ALJ was not required to discuss the VA rating, the [15] ALJ was “still obligated to provide analysis of any significant, probative evidence [16] contained in the Veterans’ Administration’s records.” (Doc. 11 at 17.) Plaintiff contends [17] that “the ALJ did not even mention the extensive, detailed analysis underlying the VA’s [18] determination that Plaintiff is 70 percent service-connected disabled, and in fact [19] unemployable.” (Id.) [20] In response, the Commissioner argues that the revised regulations excuse the ALJ [21] from analyzing a disability determination by another governmental agency or non22 governmental entity. (Doc. 12 at 14.) The Commissioner acknowledges that the ALJ must [23] still consider the evidence underlying that decision but argues that “substantial evidence [24] supports the ALJ’s evaluation of the objective medical findings, including medical records [25] from the VA,” and that “[t]he decision contains a lengthy and thorough review of the [26] medical evidence which shows that the ALJ considered medical evidence from the VA in [27] making his decision in accordance with 20 C.F.R. § 404.1504 . Plaintiff fails to provide [28] any specific evidence that the ALJ did not consider all the relevant medical evidence, including the VA evidence, when formulating Plaintiff’s RFC.” (/d. at 14-15.) 2 In reply, Plaintiff argues that the ALJ did not consider the opinions of several physicians who contributed opinions to Plaintiff's VA compensation and pension examination, including Dr. Cheng. (Doc. 15 at 8-10.) 5 4. Analysis 6 The Court finds no error in the ALJ’s consideration of the evidence underlying the VA disability rating. The ALJ provided an unusually comprehensive discussion of the 8 || evidence underpinning Plaintiff's several impairments and a cogent rationale for the RFC 9|| determination. (AR at 20-30.) There are nearly 2,000 pages of VA treatment notes in this || record, and an ALJ “need not discuss all evidence presented to her. Rather, she must |} explain why significant probative evidence has been rejected.” Vincent on Behalf of 12|| Vincent v. Heckler, 739 F.2d 1393 , 1394-95 (9th Cir. 1984) (cleaned up). “Medical 13} opinions that predate the alleged onset of disability are of limited relevance,” Carmickle, 533 F.3d at 1165 , and the VA decision was issued approximately three years before the 15 || relevant period here. Under the circumstances, the ALJ provided an adequate explanation 16 || for why the medical evidence underlying the years-old VA determination did not compel 17 || any changes to the RFC. 18 Accordingly, 19 IT IS ORDERED that the decision of the ALJ is affirmed. The Clerk shall enter 20 || judgment accordingly and terminate this action. 21 Dated this 18th day of September, 2023. [22] 23 Am ee 24 i t _o——— Dominic W. Lanza 5 United States District Judge [28] -19-