(SS)Lemay v. Commissioner of Social Security

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 CHRISTINE LEMAY, No. 2:18-CV-2272-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, [15] Defendant. [17] 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405 (g). 20 Pursuant to the written consent of all parties (ECF Nos. 6 and 7), this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 22 U.S.C. § 636 (c). Pending before the court are the parties’ briefs on the merits (ECF Nos. 15 and 23 16). 24 The court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520 , 521 28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 13 Cir. 1988). 14 For the reasons discussed below, the Commissioner’s final decision is affirmed. [15] 16 I. THE DISABILITY EVALUATION PROCESS 17 To achieve uniformity of decisions, the Commissioner employs a five-step 18 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 19 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 20 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 21 not disabled and the claim is denied; 22 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 23 impairment; if not, the claimant is presumed not disabled and the claim is denied; [24] Step 3 If the claimant has one or more severe impairments, 25 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 26 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; [27] 28 / / / 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied; 4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. [7] See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). [8] 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, [16] 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450 , 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520 (f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on November 4, 2014. See CAR 15.1 3 In the application, plaintiff claims disability began on November 5, 2012. See id. Plaintiff’s 4 claim was initially denied. Following denial of reconsideration, plaintiff requested an 5 administrative hearing, which was held on April 3, 2017, before Administrative Law Judge (ALJ) 6 Christopher C. Knowdell. In a July 18, 2017, decision, the ALJ concluded plaintiff is not 7 disabled based on the following relevant findings: 8 1. The claimant has the following severe impairment(s): celiac disease, arthralgia, depression, and chronic fatigue syndrome; [9] 2. The claimant does not have an impairment or combination of 10 impairments that meets or medically equals an impairment listed in the regulations; [11] 3. The claimant has the following residual functional capacity: light 12 work, except she is limited to occasional postural activities, she must avoid concentrated exposure to extreme heat, humidity, and 13 cold, and she is limited to simple tasks with no public interactions; 14 4. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, there 15 are jobs that exist in significant numbers in the national economy that the claimant can perform. [16] See id. at 17-24. [17] 18 After the Appeals Council declined review on June 9, 2018, this appeal followed. [19] 20 III. DISCUSSION 21 In her opening brief, plaintiff argues: (1) the ALJ erred in rejecting her 22 testimony as to the severity of her symptoms; (2) the ALJ ignored the requirements of 20 C.F.R. 23 § 404.1520a in evaluating the severity of plaintiff’s depression; and (3) the ALJ failed to properly 24 evaluate the medical opinions from plaintiff’s treating physician, Dr. Sutter. 25 / / / 26 / / / [27] 1 Citations are the to the Certified Administrative Record (CAR) lodged on 28 December 4, 2018 (ECF No. 10). 1 A. Severity of Plaintiff’s Depression 2 To qualify for benefits, the plaintiff must have an impairment severe enough to 3 significantly limit the physical or mental ability to do basic work activities. See 20 C.F.R. §§ 4 404.1520(c), 416.920(c).2 In determining whether a claimant’s alleged impairment is sufficiently 5 severe to limit the ability to work, the Commissioner must consider the combined effect of all 6 impairments on the ability to function, without regard to whether each impairment alone would be 7 sufficiently severe. See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996); see also 42 8 U.S.C. § 423 (d)(2)(B); 20 C.F.R. §§ 404.1523 and 416.923. An impairment, or combination of 9 impairments, can only be found to be non-severe if the evidence establishes a slight abnormality 10 that has no more than a minimal effect on an individual’s ability to work. See Social Security 11 Ruling (SSR) 85-28; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting 12 SSR 85-28). The plaintiff has the burden of establishing the severity of the impairment by 13 providing medical evidence consisting of signs, symptoms, and laboratory findings. See 20 14 C.F.R. §§ 404.1508 , 416.908. The plaintiff’s own statement of symptoms alone is insufficient. 15 See id. 16 At Step 2, the ALJ determined that plaintiff’s depression is a severe impairment. 17 See CAR 17-18. Though plaintiff argues the ALJ failed to apply 20 C.F.R. § 404 .1520a, plaintiff 18 concedes: “In this case, the ALJ did this [applied § 404.1520a(b)(1)] and found that Plaintiff 19 suffers from depression.” See ECF No. 15, pg. 11. According to plaintiff, the ALJ failed to 20 “apply the special technique to evaluate the severity of Plaintiff’s mental impairment. . . .” Id. 21 According to plaintiff: “At step two in this case, the ALJ did not provide a narrative of his 22 rationale. . . .” Id. at 12. Plaintiff argues the matter must be remanded. 23 / / / 24 / / / 25 / / / 26 2 Basic work activities include: (1) walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) seeing, hearing, and speaking; (3) understanding, 27 carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes 28 in a routine work setting. See 20 C.F.R. §§ 404.1521 , 416.921. 1 Plaintiff’s argument is not persuasive. Though the ALJ did not provide a narrative 2 discussion supporting his conclusion at Step 2 that plaintiff’s depression is a severe impairment, 3 the court finds no error given that the ALJ did in fact find the impairment to be severe. Plaintiff 4 has not indicated how the lack of a narrative discussion at Step 2 resulted in any prejudice given 5 that the ALJ rendered a favorable determination as to the severity of plaintiff’s depression. While 6 plaintiff references medical sources who concluded plaintiff’s depression is extremely limiting, 7 plaintiff confuses the standard applicable at Step 2 with the standard at Step 4 for determination 8 of residual functional capacity. To what extent plaintiff’s depression presents more than minimal 9 limitations on her ability to work is not relevant at Step 2.3 10 B. Evaluation of Medical Opinions 11 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, [12] 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527 (b)). The ALJ errs by not 13 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 14 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical 15 opinion over another. See id. 16 Under the regulations, only “licensed physicians and certain qualified specialists” 17 are considered acceptable medical sources. 20 C.F.R. § 404.1513 (a); see also Molina v. Astrue, [18] 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on 19 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it 20 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144 , 21 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute 22 substantial evidence when the opinions are consistent with independent clinical findings or other 23 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social 24 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. 25 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants 26 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). [27] 3 Notably, plaintiff raises no arguments concerning the ALJ’s evaluation of 28 depression and residual functional capacity at Step 4. 1 Opinions from “other sources” such as nurse practitioners, physician assistants, and social 2 workers may be discounted provided the ALJ provides reasons germane to each source for doing 3 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 4 F.3d 648 , 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527 (f)(1) and describing circumstance 5 when opinions from “other sources” may be considered acceptable medical opinions). 6 The weight given to medical opinions depends in part on whether they are 7 proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 8 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 9 professional, who has a greater opportunity to know and observe the patient as an individual, than 10 the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th 11 Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the 12 opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502 , 506 & n.4 (9th 13 Cir. 1990). 14 In addition to considering its source, to evaluate whether the Commissioner 15 properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in 16 the record; and (2) clinical findings support the opinions. The Commissioner may reject an 17 uncontradicted opinion of a treating or examining medical professional only for “clear and 18 convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831 . 19 While a treating professional’s opinion generally is accorded superior weight, if it is contradicted 20 by an examining professional’s opinion which is supported by different independent clinical 21 findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035 , 22 1041 (9th Cir. 1995). 23 A contradicted opinion of a treating or examining professional may be rejected 24 only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d 25 at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the 26 facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a 27 finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and 28 legitimate reasons, the Commissioner must defer to the opinion of a treating or examining 1 professional. See Lester, 81 F.3d at 830-31 . The opinion of a non-examining professional, 2 without other evidence, is insufficient to reject the opinion of a treating or examining 3 professional. See id. at 831. In any event, the Commissioner need not give weight to any 4 conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111 , 5 1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); see 6 also Magallanes, 881 F.2d at 751 . 7 1. The ALJ’s Analysis 8 At Step 4, the ALJ considered the medical opinion evidence in determining 9 plaintiff’s residual functional capacity. See CAR 21-22. As to treating sources, the ALJ stated: 10 I have considered the multiple physician’s statement[s] completed for purposes of long-term disability insurance benefits (see Ex. 9F). In these 11 statements, it was asserted that the claimant’s physical impairments were “Class 4,” indicating “marked limitation – capable of minimal activity” 12 (see Ex. 9F, pp. 7 and 12). I give no weight to these ratings because they are not supported by the evidence at the hearing level as discussed above, 13 including the claimant’s capacity for skiing and traveling. The ratings are also not assessments of the claimant’s residual functional capacity for 14 purposes of Social Security disability determination and thus, they have little probative value. [15] The claimant’s treating doctor, Charles Sutter, M.D., also completed a 16 “Chronic Fatigue Syndrome Residual Functional Capacity Questionnaire” on May 26, 2016, in which he indicated the claimant’s fatigue, celiac 17 disease and arthralgia frequently interfered with her attention and concentration and generally limited her to less-than-sedentary activities. 18 He indicated the claimant could not sit or stand for more than one hour at a time and that the claimant had been at this level of functioning for over 19 four years (Ex. 13F). I find these limitations are not consistent with the rather limited medical treatment the claimant has received to date, as well 20 as the physical activities she reported as noted above on a longitudinal basis (traveling and skiing). This checklist-style form appears to have 21 been completed based on the claimant’s subjective complaints only and includes only conclusions regarding exertional limitations without 22 objective rationale for those conclusions. It is noted that Dr. Sutter previously completed a similar form on April 20, 2016, in which he 23 indicated the claimant could sit for four hours and stand and/or walk for two hours total, but not continuously (Ex. 14F, p. 67). The file shows that 24 the claimant and her representative had some role in advising Dr. Sutter on how to complete the form with respect to question number 10, as he 25 revised the form and added further limitations in the May 26, 2016, form (see Ex. 14F, p. 205). The foregoing suggests that the doctor apparently 26 relied quite heavily on the subjective report of symptoms and limitations provided by the claimant in completing the assessments and this renders 27 them less than persuasive. 28 CAR 21. 1 2. Plaintiff’s Contentions 2 Plaintiff argues the ALJ erred because he “. . .never acknowledged or addressed 3 the central issue regarding Plaintiff’s residual functional capacity – specifically, the effect her 4 persistent fatigue symptoms and need to sleep 12 to 16 hours per day has on her ability to perform 5 work tasks on a sustained, full-time basis.” Plaintiff adds: 6 . . . The ALJ’s rejection of a long-time treating doctor’s opinion is reversible error where the ALJ does not even mention the doctor’s stated 7 grounds for concluding Plaintiff is disabled. See Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 1988) [holding ALJ must, at a minimum, 8 provide specific, legitimate reasons for rejecting physician’s opinion]; Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 9 In addition, Dr. Sutter completed two residual functional capacity questionnaires specific to this Social Security proceeding. AR at 485-486, 10 932-933. The limitations Dr. Sutter set forth in his RFC questionnaires include that Plaintiff’s fatigue symptoms frequently interfere with her 11 attention and concentration, she has good and bad days, and on average she is able to sit a total of 2 to 4 hours, approximately, in a competitive 12 work situation but not continuously. See id. Consistent with Dr. Sutter’s earlier private disability certifications that she needs to sleep between 12 13 to 16, such limitations preclude all competitive work. See AR at 95; SSR 96-9p [sedentary work generally requires sitting 6 hours per day and 14 attending work 5 days per week, 8 hours per day]. However, the ALJ also rejected Dr. Sutter’s opinions set forth in 15 his RFC questionnaires. AR at 21. Here, the ALJ again gave a general reason that “these limitations are not consistent with the rather limited 16 medical treatment the claimant has received to date, as well as the physical activities she reported as noted above on a longitudinal basis (travelling 17 and skiing).” Id. But as detailed above, the ALJ’s characterization of Plaintiff’s travelling and skiing activities is a plain distortion of the record 18 and not supported by substantial evidence. The ALJ also never mentioned that treating doctors encouraged Plaintiff to engage in activities as 19 tolerated. See AR at 351, 611. On this record, it was not rational to discredit Dr. Sutter’s opinions based upon Plaintiff’s limited activity. 20 Moreover, in the context of CFS, it was illogical and legal error for the ALJ to reject Dr. Sutter’s opinions based on a lack of aggressive 21 treatment. As this Court recently held, “an ALJ may not reject a physician’s opinion based on conservative care unless the record incites 22 that more aggressive treatment options were ‘appropriate’ and ‘available.’” Miranda v. Comm’r. of Soc. Sec., no. 2:17-cv-1653-DMC, [23] 2019 U.S. Dist. LEXIS 5046 at *29 [citing Lapeirre-Gutt v. Astrue, 382 Fed.App’x. 662, 664 (9th Cir. 2010); Schultz v. Colvin, 32 F. Supp.3d 24 1047, 1060 (N.D. Cal. 2014). According to the medical consensus, including that from the U.S. Centers for Disease Control and Prevention, 25 no cure or approved treatment exists for CFS.7 Treatment records also show that Dr. Sutter, and specialists he referred Plaintiff to, acknowledged 26 her persistent fatigue is likely “her new baseline” and, with no available cure, would need to be managed rather than aggressively treated, as the 27 ALJ’s reasoning seems to misunderstand. See AR at 351, 438, 846. 28 / / / 1 Finally, the ALJ claimed Dr. Sutter’s opinions are not credible because Plaintiff and her attorney asked him to provide it. AR at 21. While 2 the ALJ is flatly wrong that the record contains any indication Plaintiff’s attorney asked Dr. Sutter to do anything, the ALJ construed Plaintiff’s 3 involvement in obtaining the RFC questionnaires to “suggest” that Dr. Sutter “relied quite heavily” on limitations Plaintiff provided rather than 4 his own professional judgment. See id. This bold assertion – that Dr. Sutter essentially fabricated his opinions at Plaintiff’s insistence – lacks 5 support from the record and is contrary to controlling circuit court authority. 6 In Reddick v. Chater, the Ninth Circuit held it is not legitimate for an ALJ to reject a doctor’s opinion on the basis that a claimant requested 7 it, absent evidence of impropriety. 157 F.3d 715 , 726 (9th Cir. 1998) [“We clarify here that, in the absence of other evidence to undermine the 8 credibility of a medical report, the purpose for which the report was obtained does not provide a legitimate basis for rejecting it.”]. In this case, 9 there is no evidence that the substance of Dr. Sutter’s opinion is a result of him taking direction from Plaintiff. 10 The only specific evidence the ALJ could identify to purportedly show Dr. Sutter was improperly influenced by Plaintiff relates to her 11 request that Dr. Sutter complete a second RFC questionnaire one month after his original submission. AR at 21 [citing AR 691]. However, the 12 second RFC questionnaire is not materially different from Dr. Sutter’s first. The ALJ focused specifically on question number 10 on the forms 13 for his adverse finding. On the first submission, Dr. Sutter checked a box next to question 10 indicating Plaintiff could sit approximately 4 total 14 hours in a work day but not continuously. AR at 932. On the second form, after Plaintiff wrote seeking some unspecified clarification, Dr. Sutter 15 wrote in the margin next to question 10 that he estimates Plaintiff could tolerate approximately “2–3 hours a day total either sitting or standing on 16 good days, less than one on bad days.” AR at 486. All other responses on each form are the same. 17 Given the check-the-box nature of the form, together with the fact Dr. Sutter was asked for approximations and estimates, it is not at all clear 18 the limited difference in the response matters. But if the record is ambiguous, the ALJ had an affirmative duty to develop the record to allow 19 for a fair and proper consideration of the opinions. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) [ALJ’s duty to develop 20 triggered based on ambiguity and may be satisfied by subpoenaing claimant’s physician or submitting questions to the physician]. Dr. Sutter 21 has treated Plaintiff for years and there is not another medical professional in this case more familiar with Plaintiff’s history and condition. His 22 opinions merited close, careful attention before being dismissed in the entirety. 23 Importantly, the clinical basis for Dr. Sutter’s estimates are sound in that treatment records consistently report Plaintiff sleeps 12 to 16 hours 24 daily, is unable to get out of bed for multiple days at a time, falls asleep during activities like visiting a museum and reading, and exhibits the 25 medically-accepted signs and symptoms of CFS. See AR at 287-88, 291, 337-38, 341-43, 350-52, 391-92, 404-405, 438-39, 625-26, 847-48, 1074. 26 The ALJ never explained why this evidence did not support Dr. Sutter’s opinions. Given that Dr. Sutter’s opinions are consistent with his treatment 27 reports, the ALJ’s bold inference that Dr. Sutter fabricated his opinion to please his patient is especially troubling. The ALJ certainly did not 28 identify evidence of “actual improprieties” required to reject a medical 1 opinion merely because a claimant requested it from a doctor. See Reddick, 157 F.3d at 726. This incomplete, generalized treatment of a 2 treating doctor’s opinion is legal error. Under the Commissioner’s regulations in place at the time Plaintiff 3 applied for benefits, the weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining 4 professionals. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). Ordinarily, more weight is given to the opinion of a treating professional, 5 like Dr. Sutter, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1295 (9th 6 Cir. 1996). A contradicted opinion of a treating or examining professional may 7 be rejected only if the ALJ provides “specific and legitimate” reasons that are supported by substantial evidence. Lester, 81 F.3d at 830 . But the 8 opinion of a non-examining physician is insufficient to reject the opinion of a treating or examining physician. Lester, 81 F.3d at 831 . 9 Finally, the Commissioner’s regulations instruct the ALJ to evaluate every medical opinion from a treating physician according to 10 specified factors that include (i) length of the treatment relationship and the frequency of examination, (ii) nature and extent of the treatment 11 relationship, (iii) supportability of the opinion, (iv) consistency with the record, (v) specialization of the physician, and (vi) other factors such as 12 the extent to which the treating doctor is familiar with other medical evidence in the case record. 20 C.F.R. § 404.1527 (c)(2); Trevizo v. 13 Berryhill, 871 F.3d 664, 676 (9th Cir. 2017). With respect to Dr. Sutter’s opinions, the ALJ failed to expressly 14 apply the factors that Social Security’s regulations and circuit authority direct must guide the finding whether to give weight to medical opinions. 15 More faithful adherence to the regulation’s requirement and the holding from Trevizo would go a long way in avoiding the erroneous reasoning 16 seen here. While the ALJ is charged with resolving conflicts in the medical evidence, that does not empower him to reject a treating doctor’s 17 conclusions based on reasoning that conflicts with the medical consensus as to the nature of CFS and by adopting an incomplete, at times distorted 18 characterization of the record. For the foregoing reasons, the ALJ’s rejection of Dr. Sutter’s opinions was not legitimate, sufficiently specific, 19 or supported by substantial evidence. Plaintiff respectfully asks the Court reverse the final administrative decision in this case. [20] 21 3. Disposition 22 Dr. Sutter’s opinions in this case are expressed in two questionnaires he 23 completed. Specifically, Dr. Sutter completed a Chronic Fatigue Syndrome Residual Functional 24 Capacity Questionnaire in May 2016. See CAR 485-86, 554-55. Dr. Sutter also completed a 25 form by the same name in April 2016. See id. at 552-53, 932-33. These records are marked as 26 Exhibits 13F and 14F in the record. 27 / / / 28 / / / 1 In the May 2016 questionnaire, Dr. Sutter listed the following symptoms 2 supporting his opinion: fatigue, general malaise, muscle weakness, loss of manual dexterity, 3 frequency of urination, difficulty thinking and concentrating, abdominal pain, dizziness and loss 4 of balance, swelling, headaches, and chronic skin infections. See CAR 485, 554. Dr. Sutter 5 opined that plaintiff’s symptoms are severe enough to frequently interfere with attention and 6 concentration. See id. He also opined that plaintiff is severely limited in her ability to deal with 7 work stress. See id. Dr. Sutter indicated that plaintiff was not at the time taking any medications. 8 See id. at 485, 555. According to Dr. Sutter plaintiff can continuously sit for 1 hour, continuously 9 stand for 1 hour, and sit/stand/walk a total of “about 2 hours” in an 8-hour workday. Id. The 10 doctor stated plaintiff has been functioning at this level for “4+” years. Id. 11 In the April 2016 questionnaire, Dr. Sutter listed the same symptoms and 12 limitations except as to sitting, standing, and walking. According to the April 2016 questionnaire, 13 plaintiff can continuously sit for 2 hours at a time, continuously stand for 1 hour at a time, 14 stand/walk for a total of 2 hours in an 8-hour workday, and sit for a total of 4 hours in an 8-hour 15 workday. See id. at 553, 933. 16 The ALJ rejected Dr. Sutter’s conclusions citing four reasons. First, the ALJ 17 found the limitations inconsistent with plaintiff’s history of limited medical treatment. See id. at 18 21. Second, the ALJ found Dr. Sutter’s limitations inconsistent with plaintiff’s reported activities 19 of skiing and traveling. See id. Third, the ALJ determined that Dr. Sutter’s opinions are 20 unsupported by objective evidence. See id. Fourth, the ALJ speculated that plaintiff and her 21 representative “had some role” in advising Dr. Sutter how to prepare the forms. Id. 22 As to whether plaintiff or her counsel “had some role” in the preparation of Dr. 23 Sutter’s reports as the ALJ speculates, the court finds this reason to be invalid on the current 24 record. Specifically, there is no evidence that this “role” extended beyond simply asking Dr. 25 Sutter to prepare the questionnaires. 26 / / / 27 / / / 28 / / / 1 The court also finds the ALJ’s rationale, that Dr. Sutter’s opinions are unsupported 2 by objective findings, to be insufficient. As Dr. Sutter’s forms make clear, his opinions are based 3 on the symptoms he cited and there is no suggestion that these symptoms are not based on the 4 doctor’s objective findings. To the contrary, the symptoms outlined by the doctor are the 5 objective findings. 6 The ALJ’s other cited reasons – inconsistency with limited medical treatment and 7 inconsistency with activities such as skiing and traveling – support the ALJ’s conclusion. As the 8 ALJ outlined in the hearing decision, plaintiff’s history of treatment is indeed limited. See CAR 9 20-21. Moreover, the record reflects that plaintiff engaged in skiing and international travel since 10 the alleged onset date. In particular, plaintiff traveled to Canada in 2013 and 2014 and she stated 11 she enjoyed skiing. See id. at 20. Plaintiff’s ability to travel to Canada from California indicates 12 an ability to sit/stand for more than a total of 2 hours at a time, contrary to Dr. Sutter’s May 2016 13 report. Likewise, the ability to ski undermines the doctor’s opinions of extreme limitation. 14 Most troubling, however, is the inconsistency between Dr. Sutter’s reports even 15 though they were prepared only a month apart. In April 2016 Dr. Sutter opined that plaintiff can 16 sit for a total of 4 hours in an 8-hour workday. In May 2016, however, Dr. Sutter opined that 17 plaintiff can only sit for a total of 2 hours in an 8-hour workday. There is no objective evidence 18 outlined in the doctor’s reports to account for this discrepancy. 19 For all of the foregoing reasons, the court finds no reversible error with respect to 20 the ALJ’s analysis of Dr. Sutter’s opinions. 21 C. Plaintiff’s Credibility 22 The Commissioner determines whether a disability applicant is credible, and the 23 court defers to the Commissioner’s discretion if the Commissioner used the proper process and 24 provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit 25 credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 26 F.2d 1229 , 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 27 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible 28 and what evidence undermines the testimony. See id. Moreover, unless there is affirmative 1 evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not 2 credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d 3 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), 4 and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 5 If there is objective medical evidence of an underlying impairment, the 6 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 7 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 8 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 9 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce 10 objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that 11 the medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship 12 be a reasonable inference, not a medically proven phenomenon. [13] 80 F.3d 1273 , 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). [14] 15 The Commissioner may, however, consider the nature of the symptoms alleged, 16 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, [17] 947 F.2d at 345-47 . In weighing credibility, the Commissioner may also consider: (1) the 18 claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent 19 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a 20 prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5) 21 physician and third-party testimony about the nature, severity, and effect of symptoms. See 22 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 23 claimant cooperated during physical examinations or provided conflicting statements concerning 24 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 25 claimant testifies as to symptoms greater than would normally be produced by a given 26 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 27 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 28 / / / 1 Regarding reliance on a claimant’s daily activities to find testimony of disabling 2 pain not credible, the Social Security Act does not require that disability claimants be utterly 3 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has 4 repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . . 5 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. 6 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th 7 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a 8 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic 9 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the 10 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 11 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home 12 activities are not easily transferable to what may be the more grueling environment of the 13 workplace, where it might be impossible to periodically rest or take medication”). Daily 14 activities must be such that they show that the claimant is “. . .able to spend a substantial part of 15 his day engaged in pursuits involving the performance of physical functions that are transferable 16 to a work setting.” Fair, 885 F.2d at 603 . The ALJ must make specific findings in this regard 17 before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v. 18 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 19 1. The ALJ’s Analysis 20 At Step 4, the ALJ evaluated the credibility of plaintiff’s statements and testimony 21 to determine residual functional capacity. See CAR 19-21. The ALJ summarized plaintiff’s 22 statements and testimony as follows: 23 The claimant alleged disability due to fatigue, joint pain, and abdominal pain. She asserted in a fatigue questionnaire that she had difficulty 24 completing house chores, noting that her husband assisted with caring for their children and doing most chores and errands on days she was unable 25 to due to lack of energy. She maintained that she could not walk due to joint pain, but she was able to ride bikes around her neighborhood, dance 26 in the living room, and do stretches and other exercises at home. The claimant further indicated she had difficulties with her memory, 27 concentration and focus. She noted she did not tolerate stress well (Ex. 4E). The claimant described similar functional limitations in her Adult 28 Function Report dates April 3, 2015. She also indicated she was unable to 1 tolerate noise and limited her social interactions with others. She noted she was not taking any medication for her alleged conditions at the time of 2 the report (Ex. 7E). However, the claimant later reported that she was taking a number of vitamins along with Benadryl and Voltaren (Ex. 13E). [3] At the hearing, the claimant also testified to a generally sedentary lifestyle 4 at home with minimal activities due to fatigue and pain, as well as memory and concentration issues. She said she could lift no more than 5 five pounds and she had trouble using the hands because they were always cold. However, she disclosed that she was on a special diet that had 6 helped to alleviate some of her abdominal pain. She acknowledged that she no longer had to stay in bed all day and she could do some light 7 household chores. The claimant further testified to being able to go skiing (approximately eight times during the past season at Squaw Valley skiing 8 intermediate/blue rums [sic]) and wakeboarding, as well as travel to Quebec by plane to visit her family. She also indicated she could do some 9 yoga at home and attend church services, although she said she felt tired after about 45 minutes at church. . . . [10] CAR 19-20. [11] 12 The ALJ found plaintiff’s statements and testimony not credible. See id. at 20. As 13 to plaintiff’s activities, the ALJ stated: “These activities, together with the objective evidence 14 discussed below, on a longitudinal basis, are generally not consistent with disabling fatigue and 15 pain symptoms that the claimant has alleged; they provide some support for the residual 16 functional capacity set forth in this Finding.” Id. The ALJ added: 17 The record shows the claimant sought treatment for weight loss and abdominal pain secondary to celiac disease (Ex. 2F, p. 3). Imaging of the 18 claimant’s abdomen indicated no acute disease process (Ex. 2F, p. 9). However, celiac serology was positive and the claimant placed herself on 19 a gluten-free diet with partial relief of symptoms (Ex. 3F, p. 4). A tissue biopsy indicated no significant findings (Ex. 3F, pp. 14-15). The claimant 20 refused additional testing and a trial of medications in January of 2013 (Ex. 5F, p. 2). Her condition was diagnosed as chronic fatigue (Ex. 5F, p. 21 10). The claimant was nonetheless able to travel to Quebec in August of May [sic] of 2013 (Ex. 5F, p. 15). She reported in August of 2014 that her 22 level of fatigue improved when travelling and she was exercising by swimming and wakeboarding; she said she felt worse without exercise and 23 skiing felt better. The claimant had just returned from Canada, another indication that she was functioning well enough to travel and sit through 24 extended roundtrip flights (Ex. 8F, p. 3). She indicated that she enjoyed skiing despite complaints of fatigue (Ex. 16F, p. 149). Her physical 25 examinations indicated generally normal findings throughout (see Exs. 2F, pp. 4 and 14; 3F, p. 5; 5F, p. 6; and 8F, pp/ 6-7). [26] The subsequent progress notes indicate that the claimant had no significant 27 medical treatment for any acute issues through 2016 (see Ex. 14F, pp. 154-215). X-ray imaging of the claimant’s hands showed early 28 osteoarthritis in the finger joints but no signs of inflammatory arthritis 1 were noted; the claimant refused an MRI study of her left hand (Ex. 14F, pp. 273 and 359-360). She had no further workups for any other 2 musculoskeletal complaint. The claimant reportedly remained capable of skiing and she was taking supplements, eating red cabbage, and using 3 Voltaren, Motrin, and Benadryl, all of which helped with her symptoms (Ex. 16F, p. 117). There is no evidence that the claimant required further 4 diagnostic workups or use of steroid medications or prescription pain medications for exacerbation of her bowel or joint issues; she remained on 5 a number of supplements and a special diet for celiac disease (Ex. 16F, pp. 26 and 60-61). Lab results were apparently also unremarkable (Ex. 16F, 6 p. 79). A physical examination of the claimant in March of 2016 was again unremarkable (Ex. 16F, p. 117). She again was able to go skiing in 7 May of 2016 and yet, had trouble getting out of bed to go to her doctor’s appointment that month (Ex. 16F, p. 60). There are no treatment notes in 8 the file for 2017. 9 CAR 20-21. 10 2. Plaintiff’s Contentions 11 According to plaintiff, the ALJ’s analysis is flawed because it is based on a 12 misunderstanding of plaintiff’s chronic fatigue syndrome (CFS). Plaintiff contends: 13 The ALJ’s reasoning in this respect is contrary to the medical consensus regarding the nature of CFS, as published by the U.S. 14 Department of Health and Human Services, which findings the Social Security Administration has expressly adopted. See Social Security 15 Ruling (SSR) 14-1p. In discrediting Plaintiff, the ALJ did not account for the nature of CFS and its symptoms, and for the following reasons, 16 Plaintiff respectfully asks that the Court remand this matter. See Reddick v. Chater, 157 F.3d 715, 723 (9th Cir. 1998) [reversible error where the 17 ALJ’s adverse credibility finding reflected a misunderstanding of CFS]; see, also, Salomaa v. Honda Long Term Dis. Plan, 642 F.3d 666 , 677-78 18 (9th Cir. 2011) [“There is no blood test or other objective laboratory test for chronic fatigue syndrome . . . [and] conditioning an award on the 19 existence of evidence that cannot exist is arbitrary and capricious.”]. 20 Plaintiff adds: 21 The ALJ relied on two reasons in disregarding Plaintiff’s testimony – that the objective evidence and Plaintiff’s activities “are 22 generally not consistent” with her allegations. See AR at 19-22. These reasons, in the context of CFS, mischaracterize the record and should not 23 be held to satisfy the stringent “clear and convincing” standard required to reject Plaintiff’s testimony. 24 First, regarding a lack of objective evidence, the ALJ’s reasoning is erroneous as a matter of law. It is well settled that “after a claimant 25 produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective complaints based solely on a lack of 26 medical evidence to fully corroborate the alleged severity.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); see also Bunnell v. Sullivan, [27] 947 F.2d 341, 347 (9th Cir. 1991) [“If an adjudicator could reject a claim for disability simply because a claimant fails to produce medical evidence [28] 1 supporting the severity of the pain, there would be no reason for an adjudicator to consider anything other than medical findings.”]. 2 Such reasoning is illogical in a CFS case where the medical consensus, along with Ninth Circuit case law, acknowledge there are no 3 diagnostic tests to measure or identify the impairment. See Reddick, 157 F.3d at 726 [“Chronic fatigue is defined as ‘self-reported persistent or 4 relapsing fatigue lasting six or more consecutive months.’”] [emphasis original, citation omitted]; Salomaa, 642 F.3d at 677 [“There is no blood 5 test or other objective laboratory test for chronic fatigue syndrome.”]. Social Security’s own rules also recognize CFS eludes objective 6 diagnostics. See SSR 14-1p [explaining various “Diagnostic Symptoms” of CFS may be established by a patient’s self-reports]; see also AR at 611 7 [Dr. Sutter advising no diagnostic test for CFS]. As such, the ALJ’s reasoning that the “objective evidence” is “generally not consistent” with 8 Plaintiff’s symptom testimony is specious on its face. Further, the undisputed fact is that the medical evidence in this 9 case fully supports that Plaintiff suffers from CFS and its associated limitations. Plaintiff’s persistent fatigue, despite sleeping 12 to 16 hours a 10 day, is clinically documented throughout the record over a period of years. See AR at 287-88, 291 [could not get out of bed for 2 days], 297-98 11 [severe fatigue], 337-38, 341-43, 350-52 [requires minimum of 12 hours sleep and still tired], 355-56 [needs daily naps], 391-92 [sleeping 12 to 16 12 hours per day], 404-405 [falls asleep while reading], 438-39 [fell asleep at museum; sleeps 12 to 14 hours per day], 625-26 [needs daily naps despite 13 full-time help at home; sleeps for 2 days without daily nap], 847-48, 1074 [difficulty getting out of bed following activity]. According to Social 14 Security, this clinical evidence is the “hallmark of CFS.” See SSR 14-1p. Treatment records support Plaintiff’s claim of disability and are not 15 substantial evidence of an ALJ finding that Plaintiff’s symptoms are not credible. 16 Indeed, the evidence also includes clinical documentation of symptoms which Social Security labels “additional indications of CFS.” 17 SSR 14-1p(I)(B). Evidence that Plaintiff’s illness meets these additional criteria is abundant and consistent through the record. See AR at 277 18 [abdominal pain], 287 [abdominal pain], 291 [hand/joint pain, abdominal pain], 297-98, 303 [chronic abdominal pain, normal endoscopy], 307, 33719 38 [poor sleep patterns], 341-42 [memory and concentration problems, poor sleep, headaches, fatigue after activity, abdominal pain], 355-56 20 [post-exertional fatigue], 391 [concentration problems], 399, 438 [headaches, muscle aches], 847 [joint pain without swelling, muscle 21 aches], 852-53 [joint pain without swelling, muscle aches], 854-55 [muscle tenderness], 858-59 [joint pain, muscle aches]. 22 Moreover, the record includes positive findings with respect to the few laboratory tests Social Security recognizes often correlate to CFS. 23 Plaintiff’s blood tests found elevated Epstein-Barr virus antibodies and abnormal immunoglobulin levels. See AR at 367-68; SSR 14-1p(II)(C)- 24 (D). Social Security’s retained consultant also administered a series of clinical tests and found significant memory and neurological deficits, 25 which Social Security has ruled is further medical support of CFS. See AR at 455-56; SSR 14-1p(II)(E). 26 On this record, there is no factual support for the ALJ’s conclusion that the “objective” evidence is inconsistent with Plaintiff’s complaints 27 regarding her CFS. The record is replete with clinical evidence that Social Security’s own rules recognize as the hallmarks of this debilitating 28 disease, CFS. As such, it was both legally and factually erroneous for the 1 ALJ to discredit Plaintiff due to a purported lack of “objective” evidence, after the ALJ specifically found sufficient medical evidence of Plaintiff’s 2 impairment. See Burch, 400 F.3d at 680 ; Bunnell, 947 F.2d at 347 . The ALJ’s second reason for discrediting Plaintiff – that her 3 activities “are generally not consistent” with her allegations – also lacks for context and represents legal error. See AR at 19-22. As a legal matter, 4 the Ninth Circuit “has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities does not in any way detract from her 5 credibility as to her overall disability.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) [quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 6 2001) [ellipsis omitted]. Rather, a claimant’s activities may discredit her testimony regarding symptom severity only when (i) the activities “meet 7 the threshold for transferable work skills” or (ii) the activities contradict her testimony. See id. [citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 8 1989)]. Here, the ALJ failed to engage meaningfully with either aspect of 9 this standard. The ALJ did not identify any contradictions regarding Plaintiff’s testimony or at all address which of Plaintiff’s limited activities 10 transfer to a competitive work setting. Instead, the ALJ simply offered the conclusion that “her ability to do some chores, exercise, travel, and ski 11 regularly convey some ability for exertion that is generally inconsistent with disabling functionality.” AR at 22. Again, however, even if this bare 12 conclusion was legally sufficient, which it is not, it remains a plain distortion of the record and not supported by substantial evidence. 13 The ALJ made much of the supposed notion that Plaintiff goes snow skiing “regularly” without ever acknowledging Plaintiff’s actual 14 testimony as to the limited extent she engaged in this activity. Contrary to the ALJ’s vague characterization, Plaintiff’s testimony regarding skiing is 15 consistent with the claim her CFS symptoms are persistent and debilitating. Since the onset of her condition, Plaintiff testified she went 16 from an expert, prolific skier, who would ski the most rigorous areas of the mountain for more than six hours per day, to only being able to ski a 17 few times per year, for at most one hour per day, limited to groomed trails. See AR at 73-77. In addition, Plaintiff explained she undertakes an 18 elaborate routine to prepare herself before each attempt to ski, does not carry her equipment, and stays in lodging within 100 hundred feet from 19 the lift to avoid walking any distance. Id. The ALJ similarly mischaracterized Plaintiff’s testimony as to wakeboarding, which she 20 rarely even attempts to engage in, and household chores, which she cannot complete and relies on her husband to perform. See AR at 70-73, 625-26, 21 660. Equally prejudicial, the ALJ’s limited analysis never 22 acknowledged that Plaintiff’s doctor encouraged Plaintiff to make efforts to maintain activity and exercise. AR at 611. The ALJ also never 23 acknowledged that medical reports reflect Plaintiff suffers post-exertional fatigue after engaging in activity, consistent with the known 24 symptomatology of CFS. See AR at 350-51, 355-56, 438, 790, 932. On review, the Court should not defer to the ALJ’s findings given they rely on 25 gross mischaracterizations of the record. And again, under Social Security’s regulations and longstanding 26 case authority, it is largely fallacious for the ALJ to nitpick Plaintiff’s attempts at activity as grounds to discredit her. See 20 C.F.R. § 27 404.1527(c) [setting forth the agency does not generally consider “activities like taking care of yourself, household tasks, hobbies, therapy, 28 school attendance, club activities, or social programs” to be substantial 1 gainful activities]; see also Reddick, 157 F.3d at 722 [holding “disability claimants should not be penalized for attempting to lead normal lives in 2 the face of their limitations”] [citations omitted]. For these reasons, Plaintiff respectfully asks the Court to reverse the ALJ’s final decision in 3 this matter. [4] 3. Disposition [5] In this case, plaintiff alleges total disability primarily due to fatigue-related [6] symptoms. The ALJ found plaintiff’s statements and testimony of totally disabling symptoms to [7] be not credible for two reasons. First, the ALJ cited plaintiff’s limited medical treatment. [8] Second, the ALJ cited plaintiff’s daily activities, particularly plaintiff’s skiing and travel. [9] Plaintiff contends the ALJ’s citation to the scant medical record is inappropriate because there is [10] generally no objective evidence of chronic fatigue syndrome. Plaintiff also contend the ALJ [11] overstated her activities of skiing and traveling. [12] With respect to the ALJ’s citation to the limited record of medical treatment [13] sought by plaintiff, the court rejects plaintiff’s argument. While it is true that chronic fatigue [14] syndrome is typically shown by subjective complaints and not necessarily objective findings, the [15] ALJ in this case did not cite a lack of objective findings supporting chronic fatigue syndrome as a [16] rationale for findings plaintiff’s statements and testimony not credible. Rather, the ALJ noted the [17] lack of medical treatment sought by plaintiff. Specifically, the ALJ observed that plaintiff did not [18] regularly seek medical treatment for her conditions, refused some recommended treatment, and [19] had little treatment in 2016 and none in 2017. [20] With respect to plaintiff’s skiing and traveling, the court finds that the ALJ has [21] not, as plaintiff claims, overstated these activities. In particular, plaintiff testified as follows at [22] the administrative hearing: [23] Q: Do you do any snow skiing? [24] A: Yes. [25] Q: And did you do any snow skiing so far this season? [26] A: Yes. [27] Q: Where have you gone skiing at? [28] 1 A: At Squaw Valley. 2 Q: Mm-hmm. What kind of runs do you do up there? 3 A: Mostly blue runs – 4 Q: Mm-hmm – 5 A: -- then again, I, I know it sounds, I know it sounds like contradictory, but I, I used to be an expert skier – [6] Q: Mm-hmm – [7] A: -- so I could really ski anywhere on that mountain. [8] Q: Mm-hmm. [9] A: I mean, anywhere, like the bumps and the powder and all 10 that. 11 Q: What kind of skiing do you, I mean, you’re doing the blue, you’re doing the, the intermediate runs at Squaw? [12] A: Yeah, and that’s – [13] Q: How many days have you gong skiing this season so far? [14] A: Well, probably like eight. . . . [15] CAR 73-74. [16] Though plaintiff also testified that she requires a lot of preparation to be able to ski, such as [17] taking a bath to warm up and waiting some time after eating to digest, she testified that she is able [18] to ski an hour at a time on intermediate level runs. See id. at 74-75. The court find that this [19] testimony clearly undermines plaintiff’s statements of totally disabling chronic fatigue syndrome [20] symptoms. [21] Because the ALJ cited legally sufficient reasons supported by substantial evidence [22] to discount the credibility of plaintiff’s statements and testimony, the court finds no error in the [23] ALJ’s credibility analysis. [24] / / / [25] / / / [26] / / / [27] / / / [28] 1 IV. CONCLUSION 2 Based on the foregoing, the court concludes that the Commissioner’s final decision 3 | is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY 4 | ORDERED that: 5 1. Plaintiff's motion for summary judgment (ECF No. 15) is denied; 6 2. Defendant’s motion for summary judgment (ECF No. 16) is granted; 7 3. The Commissioner’s final decision is affirmed; and 8 4. The Clerk of the Court is directed to enter judgment and close this file. [10] 11 | Dated: December 6, 2019 Ssvcqo_ DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE