(SS)Esparza Carbajal v. Commissioner of Social Security

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 GUADALUPE ESPARZA CARBAJAL, Case No. 1:23-cv-00319-BAM 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 v. FOR SUMMARY JUDGMENT [14] MARTIN O’MALLEY, Commissioner of (Docs. 14, 18) [15] Social Security,1 16 Defendant. [17] 18 INTRODUCTION 19 Plaintiff Guadalupe Esparza Carbajal (“Plaintiff”) seeks judicial review of a final decision of 20 the Commissioner of Social Security (“Commissioner”) denying her applications for disability 21 insurance benefits under Title II of the Social Security Act and for supplemental security income 22 under Title XVI of the Social Security Act. The matter is currently before the Court on Plaintiff’s 23 motion for summary judgment and the parties’ briefs, which were submitted, without oral argument, to 24 Magistrate Judge Barbara A. McAuliffe.2 [25] 26 1 Martin O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin O’Malley is substituted as the defendant in this suit. [27] 2 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, including 28 entry of final judgment, pursuant to 28 U.S.C. § 636 (c). (Docs. 8, 9, 10.) 1 Having considered the briefing and record in this matter, the Court finds that the decision of 2 the Administrative Law Judge (“ALJ”) is supported by substantial evidence in the record as a whole 3 and based upon proper legal standards. Accordingly, this Court will deny Plaintiff’s motion for 4 summary judgment and affirm the agency’s determination to deny benefits. 5 FACTS AND PRIOR PROCEEDINGS 6 Plaintiff filed applications for disability insurance benefits and supplemental security income 7 on September 3, 2020. AR 10, 223-25, 226-29.3 Plaintiff alleged that she became disabled on 8 November 1, 2016, due to left arm pulled muscles/tendons with limited movement, left hand loss of 9 fingernails, diabetes, high blood pressure, cholesterol, pain on both legs, tingling on both feet, 10 cramping on both legs, and neuropathy. AR 10, 265-66. Plaintiff’s applications were denied initially 11 and on reconsideration. AR 148-52, 156-61. Subsequently, Plaintiff requested a hearing before an 12 ALJ, and following a hearing, ALJ Mark Baker issued an order denying benefits on December 30, 13 2021. AR 7-19, 26-54. Thereafter, Plaintiff sought review of the decision, which the Appeals 14 Counsel denied, making ALJ’s decision the Commissioner’s final decision. AR 1-5. This appeal 15 followed. 16 Relevant Hearing Testimony 17 ALJ Baker held a telephonic hearing on November 23, 2021. Plaintiff appeared with her 18 attorney, Jonathan Pena. Barry Hensley, an impartial vocational expert, also appeared. AR 28- 29. 19 At the outset of the hearing, Plaintiff’s counsel confirmed that the record was complete and 20 that there were no objections or witnesses. Additionally, Plaintiff’s alleged onset date was amended to 21 November 6, 2019. AR 29-30. 22 In response to questions from the ALJ, Plaintiff testified that she lives alone in an apartment. 23 Her daughter sometimes helps her with cleaning and bringing groceries from the store. AR 31. 24 Plaintiff does not have a diploma or a GED. She does volunteer work every Friday, passing out food 25 plates to senior citizens. She stopped working in August 2020 because she hurt her left arm. She did [27] 3 References to the Administrative Record will be designated as “AR,” followed by the appropriate page 28 number. 1 some therapy for her arm, but did not look at going back to her job. After she stopped working, she 2 applied for and received unemployment benefits. While receiving those benefits, she indicated that 3 she was ready, willing, and able to work. She applied for a Walmart greeter job many times, but she 4 never got called. She stopped receiving those benefits in September 2021. AR 32-34. Plaintiff stated 5 that she felt like she could work, but she gets tired going up stairs, her strength is not the same, she has 6 problems kneeling down, and she has a lot of arthritis in her body, body aching. AR 35. 7 Plaintiff testified that she was being treated for high blood pressure, diabetes, and an injury on 8 her right leg that was not healing. She takes insulin and metformin. She checks her blood sugar every 9 morning, which sometimes runs at 300, sometimes 160. She changed her diet and does some walking 10 to help control the blood sugar. AR 34-35. 11 When asked about her activities, Plaintiff testified that she goes for walks at the mall with her 12 friends and goes out to eat. She can dress, shower, and bathe herself. She can make herself something 13 to eat and she can wash dishes and clothes. She uses an electric broom to sweep. On a typical day, 14 she gets ups, walks for ten minutes outside, watched TV, and folds clothes. She drives about three 15 days out of the week, usually to her doctor’s appointments, which are five minutes away from her 16 house. AR 35-37. 17 In response to questions from her attorney, Plaintiff testified that her shoulder has improved 18 since 2019. She has a little bit of pain with reaching and repetitive use. AR 37-38. She can use her 19 arm for reaching for about an hour and then would need about five-or-ten minutes rest. She can lift 20 and carry about a five-pound bag using both arms. AR 37-39. 21 Plaintiff also testified that her knee improved since 2019. She takes medication for the pain. If 22 she walks for a half hour, she has pain and cramping, and needs to sit for about 20 minutes. She can 23 sit for half-an-hour and then will have to get up and stretch. She gets sleepy and tired from the 24 medication. She lies down to rest about 45 minutes during the day. AR 39-41. She has missed about 25 four or five days of volunteering due to pain in the previous six months. AR 42-43. 26 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE. The VE 27 characterized Plaintiff’s past work as merchandise work, home attendant, housekeeping cleaner, and 28 poultry processor. AR 47-48. The ALJ also asked the VE hypothetical questions. For the first 1 hypothetical, the ALJ asked the VE to assume a hypothetical individual of the same age, education and 2 work experience as Plaintiff with the following limitations: able to lift and/or carry 50 pounds 3 occasionally and 25 pounds frequently; able to sit 6 hours and stand and/or walk 6 hours in an 8-hour 4 day; occasionally climb ramps and stairs; never climb ladders, ropes, scaffolds; frequently balance; 5 frequently stoop; occasionally kneel; occasionally crouch; occasionally crawl; no exposure to 6 unprotected heights; no exposure to moving mechanical parts; reaching waist to chest limited to 7 frequent with bilateral upper extremities; reaching above the shoulder limited to frequent with the 8 bilateral upper extremities; handling limited to frequent with the bilateral upper extremities; fingering, 9 limited to frequent with the bilateral upper extremities; feeling limited to frequent with the bilateral 10 upper extremities; and operation of foot controls limited to frequent with the left-lower extremity. The 11 VE testified that an individual with such limitations could perform Plaintiff’s past work as home 12 attendant as actually and customarily performed, housekeeper as actually and customarily performed, 13 and poultry processor. AR 49-50. The VE testified that there would be examples of other jobs in the 14 national economy that such a hypothetical person could perform, such as production helper, landscape 15 worker, and production assistant. AR 50-51. 16 For the second hypothetical, the ALJ asked the VE to assume the same hypothetical, but 17 change the lifting and carrying to lift and/or carry 20 pounds occasionally and 10 pounds frequently. 18 The VE testified that Plaintiff’s past work as a housekeeping cleaner would be available as actually 19 performed and the poultry processor would be available as actually and customarily performed. AR 20 51. 21 For the third hypothetical, the ALJ asked the VE to consider the prior hypothetical with the 22 following additional limitation: would be off task 15 percent or more in a normal workday. The VE 23 testified that there would not be jobs in the national economy that this hypothetical person could 24 perform. AR 51-52. 25 For the fourth hypothetical, Plaintiff’s counsel asked the VE to consider the second 26 hypothetical and add that the individual would be limited to occasional reaching in all directions with 27 the left upper extremity. The VE testified that the hypothetical individual could not perform any of 28 Plaintiff’s past relevant work. Other work would be at the light level. AR 52-53. 1 Plaintiff’s counsel also asked the VE to consider the first hypothetical, but add that every 45 2 minutes, the hypothetical individual would need to take a 10-minute break. The VE testified that the 3 individual could not perform any work. AR 53. 4 Medical Record 5 The relevant medical record was reviewed by the Court and will be referenced below as 6 necessary to this Court’s decision. 7 The ALJ’s Decision 8 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 9 determined that Plaintiff was not disabled under the Social Security Act. AR 10-19. Specifically, the 10 ALJ determined that Plaintiff had not engaged in substantial activity since November 6, 2019, the 11 amended alleged onset date. AR 13. The ALJ identified the following severe impairments: diabetes 12 mellitus with peripheral neuropathy, degenerative joint disease of the ankles, feet, and left shoulder, 13 and left knee osteoarthritis. AR 13-14. The ALJ determined that Plaintiff did not have an impairment 14 or combination of impairments that met or medically equaled any of the listed impairments. AR 14. 15 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 16 functional capacity (“RFC”) to perform a range of medium work. Plaintiff could lift and/or carry up to 17 25 pounds frequently, and up to 50 pounds occasionally, could sit, stand, or walk up to six hours each 18 in an eight-hour workday, could frequently balance or stoop, could occasionally climb ramps or stairs, 19 kneel, crouch, or crawl, but could never climb ladders, ropes, or scaffolds. Plaintiff could have no 20 exposure to unprotected heights or moving mechanical parts. She was limited to frequent reaching 21 from waist to chest and reaching above the shoulder with bilateral upper extremities and to frequently 22 handling, fingering, and feeling. She could only frequently operate foot controls with her left lower 23 extremity. AR 14-16. With this RFC, the ALJ found that Plaintiff could perform her past relevant 24 work as a home attendant, housekeeping cleaner, and poultry processor. Alternatively, there were 25 other jobs in that national economy that Plaintiff could perform, such as production assistant. AR 1626 18. The ALJ therefore concluded that Plaintiff had not been under a disability from November 6, 27 2019, through the date of the decision. AR 18. 28 /// 1 SCOPE OF REVIEW 2 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 3 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 4 Court must determine whether the decision of the Commissioner is supported by substantial evidence. [5] 42 U.S.C. § 405 (g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, [6] 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112 , 7 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 8 adequate to support a conclusion.” Richardson, 402 U.S. at 401 . The record as a whole must be 9 considered, weighing both the evidence that supports and the evidence that detracts from the 10 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 11 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 12 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 13 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 14 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 15 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 16 REVIEW 17 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 18 substantial gainful activity due to a medically determinable physical or mental impairment which has 19 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 20 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 21 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 22 her age, education, and work experience, engage in any other kind of substantial gainful work which 23 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 24 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 25 1990). [28] 1 DISCUSSION4 2 Plaintiff contends that the ALJ’s RFC determination is not supported by substantial evidence 3 because the ALJ failed in his duty to complete the record and obtain an opinion of Plaintiff’s physical 4 RFC from an examining physician. Plaintiff also contends that the ALJ failed to include work-related 5 limitations in the RFC consistent with the nature and intensity of Plaintiff’s limitations and failed to 6 offer any reason for rejecting her subjective testimony. (Doc. 14 at p. 2.) 7 A. Duty to Develop the Record and Obtain Consultative Examination 8 To the extent Plaintiff challenges the record as incomplete, this issue is not properly preserved 9 for appeal. “[W]hen claimants are represented by counsel, they must raise all issues and evidence at 10 their administrative hearings in order to preserve them on appeal.” Meanel v. Apfel, 172 F.3d 1111 , 11 1115 (9th Cir. 1999). As the Commissioner points out, Plaintiff was represented by counsel at the 12 administrative hearing and her counsel informed the ALJ that the record was complete. AR 29-30 13 (“ALJ: Is the record complete? ATTY: I believe it is, yes. ALJ: Any objections? ATTY: No 14 objections.”). Because counsel confirmed that the record was complete, any challenge on that basis is 15 waived. See Gonzalez v. Kijakazi, No. 1:21-CV-01676-SKO, 2023 WL 6164086 , at *5 (E.D. Cal. 16 Sept. 21, 2023) (“Here, because counsel stated that the record was complete, the issue is not properly 17 preserved for appeal.”); Karl v. Kijakazi, No. 1:21-cv-01576-SKO, 2023 WL 3794334 , at *4–5 (E.D. 18 Cal. June 1, 2023) (finding issue not properly preserved for appeal where plaintiff represented by 19 counsel at the administrative hearing who expressly stated the record was complete); Smith v. Saul, 20 No. 1:19-cv-01085-SKO, 2020 WL 6305830 , at *7 (E.D. Cal. Oct. 28, 2020) (finding issue not 21 properly preserved for appeal where plaintiff represented by counsel at the administrative hearing and 22 specifically stated that the record was complete). 23 Even if the issue had not been waived, Plaintiff has not demonstrated any error warranting 24 remand. Although Plaintiff argues that the ALJ erred by failing to obtain an opinion from an 25 examining medical provider, (Doc. 14 at p. 6), it is Plaintiff’s burden to establish disability. Terry v. [26] 27 4 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific 28 argument or brief is not to be construed that the Court did not consider the argument or brief. 1 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990); 42 U.S.C. § 423 (d)(5)(A). (“An individual shall not be 2 considered to be under a disability unless he furnishes such medical and other evidence of the 3 existence thereof as the Commissioner of Social Security may require.”); 20 C.F.R. §§ 404.1512 (a) 4 (“[Y]ou have to prove to us that you are ... disabled ....”), 416.912(a) (same); Harrison v. Saul, No. 5 1:19-cv-01683-BAM, 2021 WL 1173024 , at *5 (E.D. Cal. Mar. 29, 2021). Plaintiff failed to submit 6 any medical opinions from a treating or examining physician as to her ability to work or her functional 7 limitations. Because it is Plaintiff's burden to present evidence of disability, the mere absence of an 8 opinion from a treating or examining physician does not give rise to a duty to develop the record; 9 rather, that duty is triggered only where there is an inadequacy or ambiguity. Bayliss v. Barnhart, 427 10 F.3d 1211, 1217 (9th Cir. 2005); Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (“[a]n 11 ALJ’s duty to develop the record further is triggered only when there is ambiguous evidence or when 12 the record is inadequate to allow for proper evaluation of the evidence.”); Harrison, 2021 WL 13 1173024, at *5-6. (finding absence of report from treating or examining source did not give rise to 14 duty to develop the record where record contained opinions of state agency physicians and plaintiff’s 15 complete treatment records); Alvarez v. Astrue, No. 1:08-cv-01205-SMS, 2009 WL 2500492 , at *10 16 (E.D. Cal. Aug. 14, 2009) (finding absence of report from treating physician did not give rise to a duty 17 to develop the record where record contained opinions of the state agency physicians and plaintiff's 18 complete treatment records). 19 In this instance, there is no indication that the record was ambiguous or inadequate to allow for 20 proper evaluation. The record included Plaintiff’s testimony and the prior administrative findings of 21 the state agency physicians, both of which were summarized by the ALJ. AR 15-16. And, as counsel 22 confirmed at the hearing, the record included Plaintiff’s complete treatment records. AR 29-30. 23 Absent any inadequacy or ambiguity in the record, the ALJ had no duty to further develop the record. 24 See, e.g., Gonzalez, 2023 WL 6164086 , at *6 (finding ALJ had no duty to develop the record further 25 where counsel conceded at the hearing that record contained plaintiff’s complete treatment records and 26 no gaps or inconsistencies were noted); accord Findley v. Saul, No. 1:18-cv-00341-BAM, 2019 WL 27 4072364, at *6 (E.D. Cal. Aug. 29, 2019) (finding ALJ not obligated to further develop the record 28 where counsel stated at the hearing that the record was complete). 1 Plaintiff also argues that the ALJ impermissibly offered his lay interpretation of raw medical 2 data in formulating Plaintiff’s RFC. (Doc. 14 at pp. 67.) An RFC “is the most [one] can still do 3 despite [his or her] limitations” and it is “based on all the relevant evidence in [one’s] case record,” 4 rather than a single medical opinion or piece of evidence. 20 C.F.R. §§ 404.1545 (a)(1), 416.945(a)(1) 5 (“We will assess your residual functional capacity based on all of the relevant medical in your case 6 record.”). Indeed, “[t]he RFC need not mirror a particular opinion; it is an assessment formulated by 7 the ALJ based on all relevant evidence.” Ashlock v. Kijakazi, No. 1:21-cv-01687-GSA, 2022 WL 8 2307594, at *3 (E.D. Cal. June 27, 2022); Gonzalez, 2023 WL 6164086 , at *6; Mills v. Comm’r of 9 Soc. Sec., No. 2:13-CV-0899-KJN, 2014 WL 4195012 , at *4 n.8 (E.D. Cal. Aug. 22, 2014) 10 (“[B]ecause it is the ALJ’s responsibility to formulate an RFC that is based on the record as a whole, 11 ... the RFC need not exactly match the opinion or findings of any particular medical source.”). 12 Here, the ALJ did not improperly substitute his own opinion for a medical opinion. Rather, the 13 ALJ considered the prior administrative medical findings of the state agency physicians, Dr. D. Subin 14 and Dr. G. Spellman, Jr.5 AR 15. Both of the physicians reviewed Plaintiff’s medical records and 15 found that she could lift and/or carry 50 pounds occasionally and 25 pounds frequently, stand and/or 16 walk about 6 hours in an 8-hour workday, sit about 6 hours in an 8-hour workday, frequently balance, 17 stoop, kneel, crouch, and crawl, occasionally climb ramps and stairs, but never climb ladders, ropes, or 18 scaffolds, could frequently reach overhead bilaterally, and must avoid concentrated exposure to 19 hazards and to fumes, odors, dusts, gases, and poor ventilation. AR 89-91, 101-103, 116-20, 132-36. 20 The ALJ found these opinions persuasive, except as to Plaintiff’s manipulative and environmental 21 limitations. AR 16. The ALJ found little indication the record that Plaintiff had limitations in her 22 ability to tolerate pulmonary impairments, but found record evidence that Plaintiff’s shoulder 23 impairment established additional limitations beyond overhead reaching. AR 16. 24 Plaintiff does not challenge the ALJ’s evaluation of these opinions. Instead, Plaintiff 25 complains that the state agency physicians “did not review any records that confirmed the existence of [26] 27 5 Prior administrative medical findings are findings made by State agency medical and psychological consultants at a prior level of review based on their review of the evidence in the record. 20 C.F.R. §§ 28 404.1513(a)(5), 416.913(a)(5). 1 Plaintiff’s diabetic neuropathy.” (Doc. 14 at p. 7.) Plaintiff is incorrect. As the Commissioner notes, 2 neuropathy was referenced in the agency records (AR 87-88, 99-100, 114-15, 130-31), and referenced 3 by Dr. Spellman in his findings (AR 115 and 131 (“Limitations are due to diabetes with neuropathy, 4 and DJD.”)). 5 Plaintiff also complains that the state agency physicians did not consider the full record and 6 thus the ALJ was required to obtain an updated medical opinion. (Doc. 14 at p. 7.) Yet, the mere 7 existence of medical records post-dating a state agency physician’s review does not in and of itself 8 trigger a duty to further develop the record. See, e.g., Charney v. Colvin, No. CV 1-7080 JC, 2014 WL 9 1152961, at *7 (C.D. Cal. Mar. 21, 2014), aff'd, 647 F. App’x 762 (9th Cir. 2016) (finding that the 10 ALJ did not err in relying on the opinions of state agency physicians that did not account for 11 subsequent medical records where subsequent records were considered by the ALJ and were not 12 inconsistent with RFC); Smith, 2020 WL 6305830 , at *8 (concluding “updated opinion is not required 13 simply because additional medical evidence is received after the State agency physicians had already 14 reviewed Plaintiff's records.”). Moreover, “there is always some time lapse between a consultant’s 15 report and the ALJ hearing and decision, and the Social Security regulations impose no limit on such a 16 gap in time.” Owen v. Saul, 808 F. App’x 421 , 423 (9th Cir. 2020). The ALJ is entitled to rely on the 17 state agency consultant’s opinions even if subsequent evidence enters the record. See, e.g., Keyes v. 18 Comm'r of Soc. Sec., No. 1:21-cv-01779-EPG, 2023 WL 2166917 , at *2 (E.D. Cal. Feb. 22, 2023). 19 The ALJ here evaluated the objective medical evidence post-dating the state agency 20 physicians’ opinions, including the evidence cited by Plaintiff in her briefing. AR 15 (acknowledging 21 Plaintiff’s “poorly controlled” diabetes, “very high” A1c readings, blood sugar readings, and 22 medication for neuropathy symptoms); Doc. 14 at p. 8.) The ALJ then interpreted that evidence and 23 formulated Plaintiff’s RFC. See Smith, 2020 WL 6305830 , at *9 (finding ALJ properly interpreted 24 evidence post-dating state agency physicians’ opinions, as charged to do, and formulated RFC). 25 While Plaintiff argues that the ALJ improperly interpreted the medical evidence, Plaintiff does not 26 identify what additional functional limitations the ALJ failed to account for in the RFC assessment. 27 (Doc. 14 at p. 7.) The cited medical records do not establish the existence of any new condition not 28 considered by the ALJ, nor are they apparently inconsistent with the RFC. (Doc. 14 at p. 9, citing AR 1 697 (follow-up diabetic visit, “Symptoms are improving.”), 421 (diabetes), 430 (diabetes, 2 neuropathy).) 3 Plaintiff further contends that the ALJ “utterly lacked the medical know-how to interpret the 4 raw medical data regarding Plaintiff’s diabetes into functional limitations.” (Doc. 14 at p. 7.) 5 Specifically, Plaintiff faults the ALJ for noting that Plaintiff reported blood sugar readings within 6 normal ranges at home. (Id. at pp. 7-8, citing AR 15.) According to the record, the ALJ observed that 7 Plaintiff reported blood sugar levels “within normal ranges at home.” (AR 15; see, e.g., AR 563-64 8 (January 2021; reports home glucose readings as a maximum of 130 and minimum of 120; “Blood 9 sugars much improved”); 586 (June 2021; “Home blood sugars 220, 155, but does not get over 10 three”); AR 812 (June 2021; “Patient reports blood sugar under 200 this morning.”). Plaintiff asserts 11 that “normal” blood sugar levels are between 70 and 110, (Doc. 14 at p. 8), while the Commissioner 12 cites authority suggesting that for individuals with diabetes, it is generally recommended that post13 prandial blood sugar levels be below 180, (Doc. 18 at p. 17). Regardless of any discrepancy related to 14 “normal ranges,” the ALJ expressly acknowledged that Plaintiff had poorly controlled diabetes and 15 very high A1c readings, which he considered in developing Plaintiff’s RFC. AR 15. Further, medical 16 records available to the state agency physicians included evidence of high blood sugars and rising A1c 17 levels. See, e.g., AR 87, 88 (“A1c is rising with sugars in the 400s”), 99, 100 (same). 18 Plaintiff also faults the ALJ for stating that she did not require emergent treatment for diabetes 19 complications. (Doc. 14 at p. 8, citing AR 532.) While Plaintiff correctly notes that she received 20 emergency room treatment for a non-healing leg wound, the associated treatment record reflects that 21 Plaintiff’s symptom onset was 1.5 months before, she had had the wound for 1.5 years, and was 22 treated only with topical antibiotics. AR 532-36. Plaintiff cites no other records undermining the 23 ALJ’s determination that she did not receive emergent care for treatment of diabetes complications. 24 For these reasons, the Court finds that the ALJ was not obligated to further develop the record. 25 B. Subjective Testimony 26 Plaintiff contends that the ALJ failed to offer any clear or convincing reason for discounting 27 Plaintiff’s symptom testimony and alleged limitations. (Doc. 14 at pp. 10-11.) [28] 1 In deciding whether to admit a claimant’s subjective complaints, the ALJ must engage in a 2 two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm’r of Soc. 3 Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). First, the claimant must produce objective medical 4 evidence of his impairment that could reasonably be expected to produce some degree of the symptom 5 or pain alleged. Garrison, 759 F.3d at 1014 . If the claimant satisfies the first step and there is no 6 evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of his 7 symptoms only by offering specific, clear and convincing reasons for doing so. Id. at 1015 . 8 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 9 expected to cause some of the alleged symptoms, but discounted her statements concerning the 10 intensity, persistence and limiting effects of those symptoms. AR 16. The ALJ was therefore required 11 to provide specific, clear and convincing reasons for discounting Plaintiff’s subjective complaints. 12 The Court finds that the ALJ provided clear and convincing reasons for discounting Plaintiff’s 13 subjective complaints. First, the ALJ determined that Plaintiff’s statements regarding the limiting 14 effects of her symptoms were inconsistent with the objective medical evidence. AR 16. Although 15 lack of supporting medical evidence cannot form the sole basis for discounting testimony, it is a factor 16 that the ALJ can consider. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). For example, the 17 ALJ noted that “there is little indication in the record that the claimant is limited in sitting, standing, or 18 walking, or that she has significant fatigue as a result of her conditions such that she would be unable 19 to work full-time without napping in the afternoon.” AR 16. Further, according to the medical 20 evidence cited by the ALJ, Plaintiff’s degenerative changes in her ankles, feet, and left knee were 21 described as mild, and she had received little treatment for the conditions. AR 15, 549 (“mild 22 arthritis”), 571 (Knee pain; “Severity level is mild.”), 589, 604 (“Mild degenerative change of the left 23 knee with a small joint effusion.”), 815 (same). 24 Second, the ALJ considered Plaintiff’s ability to carry out various daily activities and live 25 independently. AR 25. An ALJ may properly discount a claimant’s subjective complaints when the 26 daily activities demonstrate an inconsistency between what the claimant can do and the degree that 27 disability is alleged. Molina v. Astrue, 674 F.3d 1104 , 1112–13 (9th Cir. 2012) (an ALJ may consider 28 “whether the claimant engages in daily activities inconsistent with the alleged symptoms”), 1 superseded by regulation on other grounds; Curry v. Sullivan, 925 F.2d 1127 , 1130 (9th Cir. 1990) 2 (claimant’s testimony about daily activities, including taking care of personal needs, preparing easy 3 meals, doing light housework and shopping for groceries, may be seen as inconsistent with the 4 presence of a condition that would preclude all work activity). In this case, the ALJ identified that 5 Plaintiff lives alone and is generally independent with her activities, walks 10 minutes every morning, 6 can do her own dressing, bathing, cooking, dishes, laundry, and household chores. She also was able 7 to drive short distances three times a week without issue. Further the ALJ noted that Plaintiff was 8 recently working without issue until she injured her shoulder. AR 15. Plaintiff's activities may be 9 grounds for discrediting the claimant’s testimony to the extent that they contradict claims of a totally 10 debilitating impairment. Molina, 674 F.3d at 1113 . 11 Plaintiff argues that the ALJ mischaracterized Plaintiff’s testimony. (Doc. 14 at p. 10.) In 12 particular, Plaintiff asserts that the ALJ “wholly ignored key portions of Plaintiff’s testimony, namely 13 that her daughter would handle the grocery shopping (Ar. 31), [and] she would drive for only five 14 minutes to go to her doctor’s appointments (Ar. 37).” (Id.) However, as the Commissioner points out, 15 Plaintiff testified that her daughter only “sometimes” helped with groceries and that she drove three 16 times a week, not necessarily only to doctor’s appointments. AR 31. Plaintiff also argues that she 17 would need to take breaks and did not complete her activities of daily living on a daily basis due to her 18 pain. (Doc. 14 at p. 10.) However, even if Plaintiff's activities suggest some difficulty functioning, 19 the ALJ reasonably found those activities inconsistent with Plaintiff's level of alleged impairment. 20 Molina, 674 F.3d at 1113 ; see also Smartt v. Kijakazi, 53 F.4th 489 , 499 (9th Cir. 2022) (ALJ 21 reasonably determined claimant’s activities, which included grocery shopping with assistance and 22 completing various chores “in short increments due to pain,” were inconsistent with alleged severity of 23 limitations). Plaintiff’s argument also appears to overlook the ALJ’s recognition that Plaintiff was 24 recently working during the relevant period until injuring her shoulder, (AR 13 (“worked at Foster 25 Farms between February 2020 and August 2020), 15 (“claimant recently working without issue until 26 she injured her shoulder”), undermining testimony regarding the disabling nature of her degenerative 27 joint disease (and her diabetes). See Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (“An ALJ may 28 consider any work activity, including part-time work, in determining whether a claimant is 1 disabled….”); Vera v. Kijakazi, No. 1:20-cv-01489-DAD-BAM, 2022 WL 3274274 , at *9 (E.D. Cal. 2 Aug. 11, 2022), report and recommendation adopted, No. 1:20-cv-01489-ADA-BAM, 2022 WL 3 3969561 (E.D. Cal. Aug. 31, 2022) (finding ALJ properly considered plaintiff's ability to work during 4 the relevant period in evaluating her subjective complaints). 5 CONCLUSION AND ORDER 6 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 7 evidence in the record as a whole and is based on proper legal standards. Accordingly, IT IS 8 HEREBY ORDERED as follows: 9 1. Plaintiff’s motion for summary judgment (Doc. 14) is DENIED; 10 2. Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security 11 is DENIED; and 12 3. The Clerk of the Court is DIRECTED to enter judgment in favor of Defendant Martin 13 O’Malley, Commissioner of Social Security, and against Plaintiff Guadalupe Esparza 14 Carbajal. [15] 16 IT IS SO ORDERED. 17 Dated: February 1, 2024 /s/ Barbara A. McAuliffe _ 18 UNITED STATES MAGISTRATE JUDGE