Bartell v. Kijakazi

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 JENNIFER BARTELL, Case No. 2:22-cv-01220-EJY 5 Plaintiff, 6 v. ORDER 7 KILOLO KIJAKAZI, Acting Commissioner of Social Security, [8] Defendant. [9] 10 Plaintiff Jennifer Rose Bartell (“Plaintiff”) seeks judicial review of the final decision of the 11 Commissioner of the Social Security Administration (“Commissioner”) denying her application for 12 disability insurance (“DIB”) under Title II of the Social Security Act (the “Act”). ECF No. 18. On 13 December 19, 2022, the Commissioner filed a Cross-Motion to Affirm and Response to Plaintiff’s 14 Motion for Reversal and Remand. ECF Nos. 20, 21. On January 9, 2023, Plaintiff filed her Reply. 15 ECF No. 22. For the reasons stated below, the Commissioner’s decision is affirmed. 16 I. BACKGROUND 17 Plaintiff filed an application for disability insurance benefits on October 31, 2018 alleging 18 disability beginning on July 15, 2018. Administrative Record (“AR”) 414.1 The Social Security 19 Administration denied Plaintiff’s claim initially and upon reconsideration (AR 309, 317-324), 20 followed by Plaintiff’s request for a hearing before an Administrative Law Judge (“ALJ”). AR 32721 28. The ALJ held a hearing on February 23, 2021. AR 202. On April 6, 2021, the ALJ issued a 22 decision finding Plaintiff not disabled. AR 180-195. Plaintiff requested review of the ALJ’s 23 decision (AR 411-413), which was denied by the Appeals Council on June 15, 2022. AR 1-4. 24 Plaintiff now seeks judicial review of the Commissioner’s decision pursuant to 42 U.S.C. § 405 (g). [27] 1 II. STANDARD OF REVIEW 2 The reviewing court shall affirm the Commissioner’s decision if the decision is based on 3 correct legal standards and the legal findings are supported by substantial evidence in the record. 42 4 U.S.C. § 405 (g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 5 Substantial evidence is “more than a mere scintilla.” It means “such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion.” Ford v. Saul, 950 F.3d 1141 , 7 1154 (9th Cir. 2020) (quoting Biestek v. Berryhill, --U.S.--, 139 S.Ct. 1148, 1154 (2019)). In 8 reviewing the Commissioner’s alleged errors, the Court must weigh “both the evidence that supports 9 and detracts from the [Commissioner’s] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th 10 Cir. 1986) (internal citations omitted). 11 “When the evidence before the ALJ is subject to more than one rational interpretation, we 12 must defer to the ALJ’s conclusion.” Batson, 359 F.3d at 1198 , citing Andrews v. Shalala, 53 F.3d 13 1035, 1041 (9th Cir. 1995). However, a reviewing court “cannot affirm the decision of an agency 14 on a ground that the agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. 15 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). And, a court may not reverse 16 an ALJ’s decision based on a harmless error. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) 17 (internal citation omitted). “[T]he burden of showing that an error is harmful normally falls upon 18 the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 19 III. DISCUSSION 20 A. Establishing Disability Under the Act. 21 To establish whether a claimant is disabled under the Social Security Act, there must be 22 substantial evidence that: 23 1. the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be 24 expected to last for a continuous period of not less than twelve months; and 25 2. the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial 26 gainful employment that exists in the national economy. 27 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing 42 U.S.C. § 423 (d)(2)(A). “If a claimant 1 The ALJ uses a five-step sequential evaluation process to determine whether a claimant is 2 disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 3 404.1520(a). Each step is potentially dispositive and “if a claimant is found to be ‘disabled’ or ‘not4 disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 5 F.3d at 1098 (internal citation omitted); 20 C.F.R. § 404.1520 . The claimant carries the burden of 6 proof at steps one through four, and the Commissioner carries the burden of proof at step five. 7 Tackett, 180 F.3d at 1098 . 8 The five steps consider: 9 Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” within the meaning of the Social Security Act 10 and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step 11 one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520 (b). 12 Step 2. Is the claimant’s impairment severe? If not, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant’s 13 impairment is severe, then the claimant’s case cannot be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520 (c). [14] Step 3. Does the impairment “meet or equal” one of a list of specific impairments 15 described in the regulations? If so, the claimant is “disabled” and therefore entitled to disability insurance benefits. If the claimant’s impairment neither meets nor 16 equals one of the impairments listed in the regulations, then the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. See 20 17 C.F.R. § 404.1520 (d). 18 Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is “not disabled” and is not entitled to disability insurance 19 benefits. If the claimant cannot do any work he or she did in the past, then the claimant’s case cannot be resolved at step four and the evaluation proceeds to the 20 fifth and final step. See 20 C.F.R. § 404.1520 (e). 21 Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to disability insurance benefits. See 20 C.F.R. § 22 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy 23 that the claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in “significant numbers” in the national 24 economy that claimant can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 25 subpt. P, app. 2. If the Commissioner meets this burden, the claimant is “not disabled” and therefore not entitled to disability insurance benefits. See 20 C.F.R. 26 §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is “disabled” and therefore entitled to disability benefits. See id. [27] 1 B. Summary of ALJ Findings. 2 At step one, the ALJ found Plaintiff meets the insured status required by the Act through 3 December 31, 2023 and has not engaged in substantial gainful activity since July 15, 2018, the 4 alleged disability onset date. AR 185. At step two, the ALJ found Plaintiff had severe impairments 5 of fibromyalgia and degenerative disc disease of cervical and lumbar spine, status-post cervical 6 fusion on December 26, 2017 at C5-C7. AR 186. At step three, the ALJ found none of Plaintiff’s 7 severe impairments, considered singly or in combination, met or medically equaled the criteria of 8 any impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. AR 188-189. 9 In preparation for step four, the ALJ determined “[a]fter careful consideration of the entire 10 record, … [that Plaintiff] has the residual functional capacity [(“RFC”)] to perform sedentary work 11 as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant is limited to occasional 12 reaching overhead bilaterally; frequent reaching in all other directions bilaterally; frequent handling 13 and fingering bilaterally; frequent climbing of ramps and stairs; never climbing ladders, ropes, or 14 scaffolds; occasional balancing, stooping, kneeling, crouching, and crawling; the claimant can never 15 work at unprotected heights; never work with moving mechanical parts; avoiding concentrated 16 exposure extreme cold, and extreme heat; and never working in the presence of to dust, odors, fumes 17 and pulmonary irritants.” AR 189. 18 At step four, the ALJ concluded Plaintiff is capable of performing past relevant work as a 19 customer service representative. AR 193. The ALJ stated “[t]his work does not require the 20 performance of work-related activities precluded by” Plaintiff’s RFC. Id. The ALJ based this 21 determination on the entirety of the record, including Plaintiff’s work history, income records, and 22 the testimony of the Vocational Expert (the “VE”), who compared the requirements of Plaintiff’s 23 prior job as a customer service representative to the ALJ’s determined restrictions and found Plaintiff 24 was capable of performing the job in both actual and general performance. AR 193-194. In addition, 25 as an alternative to step five, the ALJ determined there were other jobs in the national economy 26 which Plaintiff would be able to perform, resulting in a finding that Plaintiff was not disabled. 20 27 C.F.R. pt. 404, subpt. P, app. 2. AR 194-195. Because the ALJ concluded Plaintiff could perform 1 under a disability, as defined by the Act, from July 15, 2018 through the date of the ALJ’s decision. 2 AR 195. 3 C. Plaintiff’s Claims. 4 1. Plaintiff Argues the ALJ’s RFC Assessment is not Supported by Substantial Evidence. [5] 6 Plaintiff alleges the ALJ’s RFC assessment is not supported by substantial evidence. ECF 7 No. 18 at 5-7. Plaintiff complains the ALJ’s determination that she can engage in a range of 8 sedentary work on a full-time, consistent basis is not supported by the record. Id. at 6. Specifically, 9 Plaintiff points to the ALJ’s findings regarding Plaintiff’s fibromyalgia and how the ALJ did not 10 apply the proper analysis of the condition for purposes of formulating Plaintiff’s RFC. Id. at 6-7. 11 Plaintiff argues the ALJ disregarded evidence in the record of Plaintiff’s multiple tender points, 12 chronic pain, fatigue, and memory fog (all symptoms of fibromyalgia) and contends this approach 13 is contrary to the Commissioner’s own rules for analyzing fibromyalgia, citing Social Security 14 Ruling 12-2p. Id. at 6. Plaintiff also contends the ALJ’s finding that Dr. Amanda Bartlett’s opinion 15 was unpersuasive because the opinion was inconsistent with the doctor’s objective findings as well 16 as the medical opinions of State Agency medical consultants. Id. at 6-7. Asserting fibromyalgia is 17 a disease that eludes objective findings, Plaintiff says an ALJ’s conclusion must be based solely on 18 a patient’s reports of pain and other symptoms. For this reason, Plaintiff says the ALJ should have 19 found Dr. Bartlett’s opinions persuasive. Id. 20 2. Plaintiff Contends the ALJ did not Articulate Clear and Convincing Reasons for Discounting Plaintiff’s Subjective Complaints. [21] 22 Plaintiff summarizes the burden shifting that occurs as a claimant gives testimony regarding 23 an underlying impairment, stating: “[Plaintiff] has the burden of proving that … [her] combination 24 of impairments would result in some degree of limitation in her activity … Once … [Plaintiff] 25 demonstrated the existence of a condition that would cause some degree of pain and dysfunction, 26 the burden shifted to the Commissioner through the ALJ to articulate reasons for rejecting the pain 27 and limitation testimony … Furthermore, when no evidence of malingering exists in the record, the 1 ALJ must articulate clear and convincing reasons for rejecting the pain and limitation testimony.” 2 Id. at 8. 3 Plaintiff reminds the Court of the ALJ’s responsibility when analyzing a claimant’s 4 testimony to consider a multitude of factors (the claimant’s reputation for truthfulness, 5 inconsistencies between the claimant’s testimony and documented conduct, the claimant’s daily 6 activities, the claimant’s work record, and evidence from third parties regarding the claimant’s 7 asserted symptoms) and to consider Plaintiff’s testimony in light of the record as a whole. Id. at 9. 8 Plaintiff argues the ALJ did not, as she was required to do, explain which testimony the ALJ found 9 to not be credible nor identify which evidence undermined Plaintiff’s testimony. Id. Plaintiff also 10 asserts the ALJ’s discounting of Plaintiff’s complaints due to her use of conservative medical care 11 is improper because Plaintiff’s conditions—degenerative disc disease of cervical and lumbar spine, 12 status-post cervical fusion, and fibromyalgia—do not have other, more aggressive forms of treatment 13 available. Id. at 10 citing AR 191. 14 Plaintiff next takes issue with the ALJ’s reliance on Plaintiff’s activities of daily living 15 (“ADLs”) when discounting Plaintiff’s complaints arguing the ALJ erred by not providing a nexus 16 between being able to perform these activities and the demands of full-time employment. Id. at 1017 11 citing AR 192. Plaintiff reiterates her insistence that the ALJ erred when using diverging opinions 18 of various doctors as grounds for rejecting Plaintiff’s limitations testimony arguing that the ALJ 19 should have based her findings on reasons unrelated to Plaintiff’s testimony (such as a reputation for 20 dishonesty), internal contradictions in the testimony, or conflicts between the claimant’s testimony 21 and the claimant’s conduct. Id. at 11. Finally, Plaintiff restates her criticism of the ALJ’s finding 22 that there was no objective support to bolster Plaintiff’s testimony contending that even in the 23 absence of objective support for a fibromyalgia finding (which Plaintiff does not concede), a 24 fibromyalgia analysis should be conducted primarily through subjective complaints not objective 25 data. Id. at 12-13 citing AR 190-191. [27] 1 D. The Commissioner’s Response. 2 1. The Commissioner Argues Substantial Evidence Supports the ALJ’s RFC Finding. 3 The Commissioner states that when crafting the RFC, the ALJ “reasonably assessed 4 Plaintiff’s symptom allegations, finding them inconsistent with generally normal examination 5 findings, improvement with treatment, Plaintiff’s daily activities, and the prior administrative 6 medical finding and medical opinion evidence.” ECF No. 20 at 3-4 citing AR 189. The ALJ then 7 translated her findings into an RFC concluding Plaintiff is able to perform sedentary work with 8 numerous postural and environmental restrictions. Id. The Commissioner reminds the Court that 9 the ALJ cannot grant disability benefits based solely on a claimant’s subjective complaints. Id. at 4 10 citing 42 U.S.C. § 423 (d)(5)(A); 20 C.F.R. § 404.1529 (a). The Commissioner argues that a 11 claimant’s statements concerning his or her symptoms are to be evaluated for consistency with the 12 objective medical evidence and the other evidence in the record. Id. citing 20 C.F.R. § 13 404.1529(c)(2)–(3); SSR 16-3p. In this case the Commissioner argues the ALJ’s findings were 14 supported by specific citations to the record and supported by substantial evidence. Id. at 4-5 . 15 First, the Commissioner recaps the ALJ’s determination that Plaintiff’s testimony was 16 inconsistent with the objective medical evidence. Id. at 5 . The Commissioner points to physical 17 exams of Plaintiff in late 2018 conducted after the alleged disability onset date showing normal 18 muscle strength in her upper and lower extremities, normal gait, no neurological defects, and normal 19 balance all despite some nerve pinching in Plaintiff’s upper and lower extremities. Id. at 5-6 citing 20 AR 190-91, 753-54, 768-69, 774, 786-87, 798, 802, 924, 1807, 1810, 1813, 3416, 3418. The ALJ 21 noted similar medical observations of Plaintiff in 2019, as Plaintiff had normal range of motion in 22 her shoulders, intact power in her upper and lower extremities, unremarkable coordination, and 23 normal gait despite tenderness and pain in her spine and lower extremities. Id. at 6 citing AR 191, 24 720, 3214, 3217, 3416, 3421. The Commissioner points to the ALJ’s reference to doctor’s office 25 visits in June 2019 and July 2019 when Plaintiff had full range of her upper and lower extremities, 26 was able to make sudden movements without sign of pain or aggravation, was able to bend without 27 difficulty, and showed no neuroforaminal narrowing or spinal canal stenosis. Id. citing AR 191, 1 year 2020, which the ALJ interpreted to mean Plaintiff’s physical impairments were not as disabling 2 as Plaintiff alleged. Id. citing AR 191. 3 The Commissioner disputes Plaintiff’s contention that an ALJ may not use objective medical 4 evidence when evaluating a claimant’s assertion that he or she suffers from fibromyalgia. Id. at 7 . 5 The Commissioner argues that objective evidence is needed to establish the presence of a medically 6 determinable impairment, which is followed by the ALJ’s findings regarding the intensity and 7 persistence of Plaintiff’s symptoms and the resulting impact on the claimant’s capacity for work. Id. 8 at 7-8 citing SSR 12-2p. The Commissioner avers the ALJ relied on objective medical evidence as 9 well as on Plaintiff’s treatment history, daily activities, and the prior administrative medical findings 10 in arriving at her conclusion to discount Plaintiff’s subjective allegations. Id. at 8 . 11 The ALJ noted Plaintiff’s December 2017 spinal surgery and the subsequent decrease of pain 12 in her neck. Id. citing AR 190, 1898. In addition, the ALJ cited Plaintiff’s use of Voltaren gel, ice 13 packs, and homeopathic methods to treat her arthritis, pain, and fibromyalgia. Id. at 9 citing AR 14 191, 751, 225, 1813. Plaintiff did not use any prescription medication for her fibromyalgia, assistive 15 devices for ambulation (despite complaints of falling), or undergo any additional surgery. Id. citing 16 AR 3221-22, 231. The Commissioner states these examples of conservative treatment, coupled with 17 the evidence Plaintiff’s physical health improved in 2018, 2019, and 2020, demonstrate her physical 18 impairments were not as severe as Plaintiff suggests. Id. The Commissioner alleges as erroneous 19 the assertion that an ALJ can rely on a plaintiff’s use of conservative treatment to reject subjective 20 testimony only if the evidence shows more aggressive treatment was available and the plaintiff 21 refused that treatment. Id. The Commissioner argues Plaintiff’s positive response to conservative 22 treatment demonstrates proper reliance on use of conservative care in direct contrast to Plaintiff’s 23 complaints of severe pain. Id. at 10 . Further, the Commissioner argues that even if she is correct, 24 the Commissioner points to Plaintiff’s declination of a referral to a rheumatologist, who could have 25 more effectively managed Plaintiff’s fibromyalgia, and Plaintiff’s failure to follow through with that 26 referral. Id. citing AR 3221. 27 The Commissioner argues the ALJ also properly relied on Plaintiff’s participation in 1 ALJ stated Plaintiff was able to feed and transport her son to school four days a week, take care of 2 and walk a dog, cook meals, go shopping, attend religious services, and perform household chores 3 such as laundry, washing dishes, and other cleaning activities. Id. citing AR 192. The Commissioner 4 contends these facts support the ALJ’s finding that Plaintiff’s documented activities contradicted her 5 claim of disabling limitations. Id. at 11 . 6 The Commissioner cites the ALJ’s findings that the administrative medical findings of State 7 Agency Drs. Rebeca Hamilton and Samuel Pak, together with the medical opinion of Dr. James 8 Marx, were persuasive. Id. citing AR 192-93. These findings contrast with the ALJ’s determination 9 that the medical opinion of Dr. Bartlett was unpersuasive, which the Commissioner argues was made 10 reasonably. Id. at 11-12 citing AR 193. The Commissioner contends the ALJ’s use of prior 11 administrative and medical opinions is proper when rejecting a claimant’s subjective allegations of 12 disability. Id. at 12 . 13 Regarding the medical opinion of Dr. Bartlett, the Commissioner reminds the Court that the 14 new Social Security regulations implemented in January 2017 dispense with the “treating source 15 rule,” which gave deference to medical opinions rendered by treating sources. Id. at 13 . The new 16 regulations emphasize consistency with other evidence in the record and supportability of the 17 medical opinion. Id. at 14 . A decision by an ALJ to discredit a medical opinion must simply be 18 supported by substantial evidence. Id. 19 In this case, the ALJ’s analysis of Dr. Bartlett’s opinion emanated from a form entitled 20 “Fibromyalgia Medical Source Statement” in which Dr. Bartlett concluded Plaintiff had marked 21 limitations of activities of daily living, in maintaining social functioning, and in completing tasks in 22 a timely manner due to deficiencies in concentration, persistence, or pace. Id. at 15 citing AR 188, 23 3208-09. Dr. Bartlett also found Plaintiff would need a sit and stand/or walk option, need to walk 24 around for five minutes in an eight hour day and walk for two minutes each time, need unscheduled 25 breaks every hour with the breaks varying in length, be unable to use her hands bilaterally to grasp, 26 turn, and twist objects, need to be off task 25 percent of the day, is incapable of even low stress 27 work, and would miss more than four days of work per month. Id. citing AR 193, 3207-08. 1 The ALJ found these conclusions inconsistent with Dr. Bartlett’s observations, in which she 2 found Plaintiff to have normal gait and extremities with no neurological defects. Id. citing AR 193, 3 1813. In addition, the ALJ discussed Drs. Hamilton and Pak’s finding and their conclusion that 4 Plaintiff could perform sedentary work based on her normal upper and lower motor strength, normal 5 gait, no neurological deficits, and normal balance. Id. citing AR 193, 753-54, 768-69, 786-87, 798, 6 802, 924. The Commissioner argues the ALJ adequately explained why she found Dr. Bartlett’s 7 opinion unpersuasive and even where the record contains conflicting medical evidence, a reviewing 8 Court must defer to the ALJ’s interpretation. Id. at 17 . 9 E. Analysis 10 1. The ALJ’s RFC is Supported by Substantial Record Evidence. 11 An RFC assessment must “[c]ontain a thorough discussion and analysis of the objective 12 medical and other evidence, including the individual’s complaints of pain and other symptoms and 13 the adjudicator’s personal observations, if appropriate.” SSR 96-8p, 61 Fed. Reg. at 34478. To the 14 extent the evidence could be interpreted differently, it is the role of the ALJ to resolve conflicts and 15 ambiguity in the evidence. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 16 1999). That said, an ALJ, not a doctor, is responsible for determining a plaintiff’s RFC. 20 C.F.R. 17 § 404.1546(c); Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (noting that 18 “the ALJ is responsible for translating and incorporating clinical findings into a succinct RFC”). 19 The ALJ’s findings of fact, as embodied in the RFC, are conclusive if supported by 20 substantial evidence. See 42 U.S.C. § 405 (g); Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). 21 When the evidence will support more than one rational interpretation, the Court must defer to the 22 Commissioner’s interpretation. See Burch, 400 F.3d at 679 . Consequently, the issue before the 23 Court is not whether the ALJ could reasonably have reached a different conclusion, but whether the 24 final decision is supported by substantial evidence. 25 Here, the ALJ summarized Plaintiff’s alleged limitations arising from disorders of the 26 skeletal spine, lumbar spinal stenosis, and fibromyalgia. AR 188-190. The ALJ recapped Plaintiff’s 27 complaints of the impact that these alleged severe impairments have on her life. AR 190 citing AR 1 437-447.2 The ALJ noted the assortment of difficulties Plaintiff asserted she lives with as a result 2 of her impairments, including pain in her back and legs, aching in the tendons in her arm, trouble 3 reaching overhead, pain and body aches when walking, pain when pushing the gas pedal, anxiety, 4 constant fatigue, fear of going outside, lack of sleep, cold spells, shortness of breath, dizzy spells, 5 brain fog, no feeling in her hands, inability to walk far, and inability to carry more than five pounds. [6] Id. The ALJ also noted Plaintiff only takes over-the-counter medication to treat her symptoms and 7 does not use any assistive device to ambulate. Id. The ALJ recited Plaintiff’s description of her 8 daily activities, including caring for her eleven-year-old son five days a week, driving him to school 9 four days a week, grocery shopping, and preparing meals while her son helps with most of the 10 household chores. Id. The ALJ noted Plaintiff can manage her own personal care, but will grab 11 onto things to prevent falling, which has happened to her in the past. Id. 12 The ALJ stated, after considering all the evidence, Plaintiff’s statements regarding the 13 intensity, persistence, and limiting effects of her symptoms were not consistent with the medical and 14 other evidence in the record. Id. In discussing Plaintiff’s fibromyalgia impairment, the ALJ 15 discussed the cervical surgery Plaintiff underwent in December 2017 following a July 2017 car 16 crash. Id. citing AR 1898. The ALJ described imaging of the cervical spine in January 2018 17 corroborating the post-surgery finding that Plaintiff’s spinal alignment was well maintained at C518 C7, and Plaintiff’s spine showed no evidence of loosening, migration, or failure. Id. citing AR 864. 19 The ALJ cited Plaintiff’s statements during a May 2018 visit to Dr. Bartlett that much of Plaintiff’s 20 fibromyalgia-related symptoms in her neck were resolved. Id. citing AR 1813. 21 The ALJ acknowledged several physical examinations in 2018 and 2019 demonstrating 22 tightness and tenderness in and around Plaintiff’s spinal region, along with limits in range of motion, 23 pain, tingling, and numbness in various parts of the body connected with spinal health. Id. at 19024 91 citing AR 753-54, 768-39, 786-87, 798, 924. The ALJ noted, however, that despite these health 25 issues, Plaintiff displayed normal upper and lower motor strength, normal gait, no neurological 26 deficits, and normal balance. Id. citing id. In addition, despite physical exams in May 2019 [27] 2 Plaintiff contended she was unable to work due to her cervical spine injury, fibromyalgia, mid back spine 1 revealing L3-L4 and L4-L5 left extraforaminal/left anterolateral disc bulges, facet arthrosis and 2 ligamentum flavum redundancy, Plaintiff displayed no significant neuroforaminal narrowing or 3 spinal canal stenosis. AR 191 citing AR 2112. The ALJ cited medical records from July 2019 in 4 which Plaintiff was observed as being able to “jump in and out of her seat” and to “do twisting and 5 bending motions” all with no problem. Id. citing AR 3215. The ALJ also referenced Plaintiff’s use 6 of conservative treatment such as Voltaren gel and other over-the-counter medication to treat her 7 symptoms, as well as homeopathic methods to treat her fibromyalgia and the lack of a prescribed 8 assistive device to ambulate.3 Id. citing AR 751, 1813, 3221, 467. Moreover, the ALJ noted there 9 are no additional back or neck surgeries Plaintiff incurred or that were recommended, nor were there 10 any treatment or hospital records from the year 2020 regarding Plaintiff’s severe physical limitations, 11 supporting the conclusion that Plaintiff’s impairments were not as debilitating as alleged. Id. 12 To address Plaintiff’s medical needs arising from her post cervical surgery, neck and back 13 pain, fibromyalgia flares, and upper and lower extremity radiculopathy, the ALJ stated the following: 14 [T]he residual functional capacity limits the claimant to sedentary work occasionally reaching overhead to the left, and occasionally reaching overhead to the right; for all 15 other reaching she can reach frequently to the left, and can reach frequently to the right; she can handle items frequently with the left hand, and can handle items 16 frequently with the right hand; she has fingering limitations frequently with the left hand, and has fingering limitations frequently with the right hand; she can climb 17 ramps and stairs frequently; never climb ladders, ropes, or scaffolds; balance occasionally; stoop occasionally; kneel occasionally, crouch occasionally; crawl 18 occasionally; the claimant can never work at unprotected heights; never work with moving mechanical parts; and she should avoid concentrated exposure to dust, odors, 19 fumes and pulmonary irritants, extreme cold, and extreme heat. 20 Id. at 191-192. 21 In support of her determination that Plaintiff’s impairments are not disabling, the ALJ cited 22 to Plaintiff’s ADLs, which include picking her son up from school, feeding him, taking him to 23 medical appointments, taking care of animals, not taking any medication for her fibromyalgia, 24 preparing one-pot meals, doing laundry, washing dishes, cooking, shopping, and going to synagogue 25 every Saturday. AR 192 citing AR 461-468, 3421. The ALJ found persuasive the medical opinions 26 of the State Agency medical consultants at the initial and reconsideration stages because they were [27] 3 The Court notes the ALJ’s finding of conservative treatment, while potentially susceptible to a different 1 supported by Plaintiff’s medical history. Id. citing AR 243-266, 269-287, 290-308. Each of the 2 State consultants found Plaintiff to be able to perform sedentary work with frequent postural 3 limitations but never climbing ladders, ropes, or scaffolds, unlimited balancing, and occasional 4 crawling; occasionally lifting overhead bilaterally; and avoiding concentrated exposure to extreme 5 cold, extreme heat, vibration, fumes, odors, dusts, gases, poor ventilation, and hazards. Id. 6 The ALJ noted the opinions of the State consultants are consistent with the findings of Dr. 7 James Marx, who observed Plaintiff in July 2017, just after Plaintiff’s involvement in a motor vehicle 8 collision in which her cervical spine was sprained, and concluded Plaintiff could do no lifting over 9 five pounds or bending and stooping until August 12, 2017. AR 193 citing AR 1151. In finding Dr. 10 Bartlett’s medical opinion unpersuasive, the ALJ found her conclusions inconsistent with the overall 11 medical record and with Dr. Bartlett’s observations that Plaintiff had normal gait and extremities 12 with no neurological defects. Id., citing AR 1813. 13 Plaintiff contends the ALJ erred in her formulation of Plaintiff’s RFC (1) by failing to analyze 14 Plaintiff’s fibromyalgia under SSR 12-2p when determining Plaintiff’s ability to perform sedentary 15 work on a full-time, consistent basis, and (2) by improperly discounting the medical opinion of Dr. 16 Bartlett. ECF No. 18 at 6-7. 17 “Fibromyalgia is ‘a rheumatic disease that causes inflammation of the fibrous connective 18 tissue components of muscles, tendons, ligaments, and other tissue.’” Revels v. Berryhill, 874 F.3d 19 648, 656 (9th Cir. 2017), quoting Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004). “Typical 20 symptoms include ‘chronic pain throughout the body, multiple tender points, fatigue, stiffness, and 21 a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue.’” Id. quoting id., [22] 379 F.3d at 590 . “What is unusual about the disease is that those suffering from it have muscle 23 strength, sensory functions, and reflexes that are normal.” Id. (internal quotation marks and 24 alteration omitted). “The condition is diagnosed ‘entirely on the basis of the patients’ reports of pain 25 and other symptoms.’” Id. quoting Benecke, 379 F.3d at 590 . “[T]here are no laboratory tests to 26 confirm the diagnosis.” Id. (alteration in original), quoting id. That said, and while objective 27 medical evidence “cannot establish the existence of fibromyalgia, the medical evidence is still 1 examination.’” Sharma H. v. Kijakaji, Case No. 5:21-cv-01630-GJS, 2023 WL 1971153 , at *4 (C.D. 2 Cal. Feb. 13, 2023) (citation omitted). “A diagnosis of fibromyalgia is not a free disability card that 3 renders all medical evidence irrelevant for all purposes.” Melendez v. Astrue, Case No. CV 104 01930-JEM, 2011 WL 6402287 , at *6 (C.D. Cal. 2011). 5 SSR 12-2p “recognizes that the symptoms of fibromyalgia ‘wax and wane,’ and that a person 6 may have ‘bad days and good days.’” Revels, 874 F.3d at 657 quoting SSR 12-2p. The ruling 7 “warns that after a claimant has established a diagnosis of fibromyalgia, an analysis of her [RFC] 8 should consider ‘a longitudinal record whenever possible.’” Id. quoting SSR 12-2p. “In evaluating 9 whether a claimant’s residual functional capacity renders them disabled because of fibromyalgia, 10 the medical evidence must be construed in light of fibromyalgia’s unique symptoms and diagnostic 11 methods, as described in SSR 12-2P and Benecke.” Id. 12 In this case, the ALJ found Plaintiff’s fibromyalgia to be a severe medical impairment; 13 however, not rising to the level of one of the listed impairments in 20 CFR Part 404, Subpart P, 14 Appendix 1. AR 187-188. While the ALJ did not expressly reference SSR 12-2p in her discussion 15 of how Plaintiff’s RFC was calculated, the ALJ did effectively take into account the unique nature 16 of fibromyalgia when formulating an RFC tailored to Plaintiff’s needs. Id. at 189. The ALJ did not 17 err in her analysis of Plaintiff’s fibromyalgia impairment as she properly construed the medical 18 evidence in light of fibromyalgia’s symptoms. See Revels, 874 F.3d at 662. Further, even if the ALJ 19 failed to specifically address the diagnostic challenges that fibromyalgia presents, as the Ninth 20 Circuit has instructed (see id.), such an error would be harmless.4 21 The ALJ discussed at length the history of Plaintiff’s severe impairments, including her 22 fibromyalgia condition. The ALJ cited the onset of Plaintiff’s symptoms from fibromyalgia as a car 23 crash in July 2017, acknowledging the multitude of spinal-related symptoms that Plaintiff exhibited 24 from the time of the crash through the year 2019. AR 190-191. The ALJ referenced medical records [25] 4 The Ninth Circuit holds that the harmless error doctrine applies in the Social Security context. Stout, 454 F.3d at 1054 citing Burch, 400 F.3d at 679 (“A decision of the ALJ will not be reversed for errors that are harmless.”). A [26] mistake made by an ALJ is harmless “where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ's ultimate disability conclusion.” Id. Similarly, error is construed to be harmless “if the agency’s path may reasonably [27] be discerned,” even if the agency “explains its decisions with less than ideal clarity.” Alaska Department of 1 showing a pattern of Plaintiff’s movement improving and treatment methods demonstrating the 2 symptoms from Plaintiff’s fibromyalgia were not unduly severe. Id. at 191. Despite noting 3 Plaintiff’s ability to perform various bodily movements and ADLs, the ALJ nevertheless formulated 4 an RFC limiting Plaintiff to sedentary work with numerous activity and environmental restrictions. 5 Id. at 189. 6 The ALJ’s thorough analysis of Plaintiff’s fibromyalgia-related symptoms, medical history, 7 treatment methods, and ADLs, in conjunction with the highly tailored nature of the RFC, constitutes 8 a longitudinal view of the medical record in this case. In addition, while Plaintiff’s fibromyalgia 9 impairment is different from other more standard medical conditions in its diagnostic methods, a 10 finding of fibromyalgia does not, as Plaintiff seems to suggest, entitle Plaintiff to an automatic 11 finding of disability. It is true that there is evidence in the record of Plaintiff suffering from tender 12 points, pain, fatigue, and memory fog. AR 547, 719, 752, 922, 1005, 1008, 3219, 3221. But the 13 ALJ considered Plaintiff’s documented medical symptoms from fibromyalgia along with the other 14 evidence in the record, determined that Plaintiff’s impairments were not disabling, and came to a 15 conclusion that was a rational interpretation of the evidence. Gamel v. Kijakazi, Case No. 19-35916, [16] 2022 WL 1499655 , at *1 (9th Cir. May 12, 2022); Manneh v. Colvin, Case No. 2:15-cv-02200-PAL, [17] 2019 WL 521608 , at *7 (D. Nev. Feb. 11, 2019) (holding that an ALJ’s RFC determination, factoring 18 in the severity of a claimant’s diagnosis of fibromyalgia, was supported by substantial evidence and 19 was a rational interpretation of the evidence). 20 Controlling case law establishes that for cases filed on or after March 27, 2017, courts are 21 not to consider medical opinions in a particular case according to any kind of absolute hierarchy. 22 Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022). Plaintiff’s case was filed on October 31, 2018; 23 therefore, the medical opinions offered must be viewed under current regulations requiring the ALJ 24 to consider “supportability” and “consistency” as the main factors in determining persuasiveness of 25 medical opinions and findings. 20 C.F.R. § 404 .1520c(2).5 An ALJ may not find a medical opinion [26] 5 “Supportability” is defined as “[t]he more relevant the objective medical evidence and supporting explanations [27] presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s) the 1 unpersuasive based only on “sheer disbelief” of the medical opinion. Timpone v. Kijakazi, Case No. 2 18-55155, 2022 WL 1599128 , at *1 (9th Cir. May 20, 2022), citing Benecke, 379 F.3d at 594 . 3 Instead, an ALJ must provide a “specific and legitimate reason” to discount a treating physician’s 4 opinion. Id. (citation omitted). 5 Regarding Dr. Bartlett’s findings, the ALJ concluded they were unpersuasive because the 6 doctor’s conclusions about Plaintiff’s extreme limitations (AR 193 citing AR 3204-3209) were 7 contradicted by Dr. Bartlett’s findings that Plaintiff had normal extremities, no neurological deficits, 8 and normal gait. Id. citing id. The ALJ also found Dr. Bartlett’s conclusion to be inconsistent with 9 the opinions of Drs. Hamilton and Pak, who concluded Plaintiff had normal gait, normal upper and 10 lower motor strength, no neurological deficits, and normal balance. AR 192 citing AR 753-54, 76811 69, 786-87, 798, 802, 924. In arriving at Plaintiff’s RFC, the ALJ used her determination that Dr. 12 Bartlett’s findings of Plaintiff requiring extreme limitations conflicted with the other medical 13 opinions in the medical record. AR 193. As mentioned, supra, the diagnostic challenges of 14 fibromyalgia do not, on their own, entitle Plaintiff to a finding of disability. Melendez, 2011 WL 15 6402287, at *6. The Court finds the ALJ did not err by viewing Dr. Bartlett’s opinion in an 16 unpersuasive light and provided a specific and legitimate set of reasons for discounting her opinion 17 as not adequately supported or consistent with the medical and other evidence in the record. 18 It is not the role of the Court to second guess the determination of the ALJ even if there is 19 more than one such interpretation of the evidence that could have been made. Id. As the Ninth 20 Circuit instructs, “to be clearly erroneous, a decision must … strike us as wrong with the force of a 21 five-week old, unrefrigerated dead fish.” Ocean Garden, Inc. v. Marktrade Company, Inc., 953 F.2d 22 500, 502 (9th Cir. 1991). This standard does not yield the result Plaintiff seeks. 23 If the record reasonably “support[s] either affirming or reversing, the reviewing court may 24 not substitute its judgment for that of the Commissioner.” Lizer v. Berryhill, 363 F. Supp. 3d 1097 , 25 1099 (N.D. Cal. 2019). The Court finds the ALJ’s RFC was supported by substantial evidence. As 26 such, the Court affirms the Commissioner’s decision and denies Plaintiff’s Motion for Reversal and [27] 1 Remand on the contention that the ALJ’s RFC determination was not supported by substantial 2 evidence. 3 2. The ALJ’s Determination Regarding Plaintiff’s Testimony was Supported by Clear and Convincing Evidence. [4] 5 An ALJ engages in a two-step analysis to determine whether a plaintiff’s testimony regarding 6 subjective pain or symptoms is credible. “First, the ALJ must determine whether there is objective 7 medical evidence of an underlying impairment which could reasonably be expected to produce the 8 pain or other symptoms alleged.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (internal 9 quotation marks omitted). “The … [Plaintiff] is not required to show that her impairment could 10 reasonably be expected to cause the severity of the symptom she has alleged; she need only show 11 that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 12 586, 591 (9th Cir. 2009) (citations and internal quote marks omitted). Second, “[i]f the [plaintiff] 13 meets the first test and there is no evidence of malingering, the ALJ can only reject the [plaintiff’s] 14 testimony about the severity of the symptoms if she gives specific, clear and convincing reasons for 15 the rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal citation and 16 quotations omitted). “General findings are insufficient; rather, the ALJ must identify what testimony 17 is not credible and what evidence undermines the [plaintiff’s] complaints.” Id. (quoting Lester v. 18 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) 19 (“[T]he ALJ must make a credibility determination with findings sufficiently specific to permit the 20 court to conclude that the ALJ did not arbitrarily discredit [the plaintiff’s] testimony.”)). Further, 21 “[w]hile an ALJ may find testimony not credible in part or in whole, he may not disregard it solely 22 because it is not substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. 23 Admin., 466 F.3d 880, 883 (9th Cir. 2006). 24 The Ninth Circuit recognizes the clear and convincing evidence standard as “the most 25 demanding required in Social Security cases” and “not an easy requirement to meet.” Garrison v. 26 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 27 920, 924 (9th Cir. 2002)); Trevizo v. Berryhill, 871 F.3d 664 678 (9th Cir. 2017). An ALJ’s failure 1 testimony constitutes legal error that is not harmless because it precludes a court from conducting a 2 meaningful review of the ALJ’s reasoning and ensuring that the plaintiff’s testimony is not rejected 3 arbitrarily. Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). 4 The ALJ provided a thorough summary of Plaintiff’s testimony. AR 190. After summarizing 5 the medical record (and a thorough discussion of the same), the ALJ found that while Plaintiff’s 6 medically determinable impairments could reasonably be expected to cause her alleged symptoms, 7 Plaintiff’s statements regarding the intensity, persistence, and limiting effects of her symptoms “are 8 not entirely consistent with the medical evidence and other evidence in the record for the reason 9 explained in” her decision. Id. The ALJ then identified the timeline of Plaintiff’s onset of symptoms 10 following her July 2017 car crash through the end of 2020, a year in which there are no documented 11 hospital visits or treatment records. Id. at 190-192. Finally, the ALJ cited Plaintiff’s documented 12 ADLs and findings of the State Agency medical consultants as support for discounting Plaintiff’s 13 subjective testimony. Id. at 192-193. The ALJ stated: 14 The claimant’s activities of daily living undermine her allegations of disabling symptoms. She reported taking care of her son including picking him up from 15 school, taking him to doctor appointments and feeding him (Ex. 4E/2). She also reported taking care of a pet and walking her animals (Exs. 4E/4; 16F/4; 33F/8). 16 The claimant was not on any medication for her fibromyalgia (Ex. 33F/12-13). Further, she reported she was able to prepare kosher one-pot meals, performing 17 household chores including laundry, washing dishes, cleaning, and cooking, go shopping, and go to synagogue every Saturday (Ex. 4E). [18] The State agency medical consultant at the initial level opined that the claimant 19 could perform sedentary work with occasional postural limitations but never climbing ladders, ropes, or scaffolds or crawling; occasionally lifting overhead 20 bilaterally; occasional feeling bilaterally; and avoid concentrated exposure to extreme cold, extreme heat, vibration, fumes, odors, dusts, gases, poor ventilation, 21 and hazards (Exs. 1A; 2A). The State agency medical consultant at the reconsideration level opined the claimant could perform sedentary work with 22 frequent postural limitations but never climbing ladders, ropes, or scaffolds, unlimited balancing, and occasional crawling; occasionally lifting overhead 23 bilaterally; and avoid concentrated exposure to extreme cold, extreme heat, vibration, fumes, odors, dusts, gases, poor ventilation, and hazards (Exs. 5A; 8A) 24 … Diagnostic imaging of the cervical spine showed instrumentation in place and spinal alignment well maintained C5-C7, no evidence of loosening, migration, or 25 failure (Ex. 5F/158). Medical imaging of the lumbar spine showed L3-L4 and L4L5 left extraforaminal/left anterolateral disc bulges, facet arthrosis and ligamentum 26 flavum redundancy, but no significant neuroforaminal narrowing or spinal canal stenosis (Ex. 17F/51). A lower extremity nerve conduction study in October 2018 27 was suggestive of a mild S1 axonal motor radiculopathy versus less likely a sciatic 1 || Zd. The above demonstrates the evidence on which the ALJ relied was objective medical eviden 2 || and constitutes specific, clear, and convincing reasons to reject the intensity, persistence and limitit 3 || effect of Plaintiff's symptoms. The ALJ did not fail to adequately explain her rationale f 4 || discounting Plaintiff's testimony. 5 Moreover, the ALJ did not wholly discount Plaintiff's testimony regarding the intensit 6 || persistence or limiting effects of her symptoms. The ALJ modified the RFC taking into accou 7 || Plaintiffs “degenerative disc disease of the cervical and lumbar spine, status-post cervical surge 8 || in December 2017, and fibromyalgia” and limited Plaintiff sedentary work with sever 9 || environmental restrictions. AR 186, 189. The record demonstrates the ALJ provided specific, clez 10 |} and convincing reasons for rejecting the intensity, persistence, and limiting effects of Plaintiff 11 |} symptoms. As such, the Court upholds the Commissioner’s decision and denies Plaintiff's Motic 12 || for Reversal and Remand. 13 || IV. ORDER 14 IT IS HEREBY ORDERED that Plaintiff's Motion for Reversal and Remand (ECF No. 1 15 |} 1s DENIED. 16 IT IS FURTHER ORDERED that Defendant’s Cross-Motion to Affirm (ECF No. 20) 17 |} GRANTED. 18 IT IS FURTHER ORDERED that the Clerk of Court must enter judgment in favor | 19 || Defendant and close this case. 20 DATED this 7th day of April, 2023. [21] 22 FLAVA. ce 33 UNITED STATES MAG TE JUDGE