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Diane M. v. Saul

United States District Court, C.D. California, Eastern Division

December 20, 2019

DIANE M., Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.


          DOUGLAS F. McCORMICK United States Magistrate Judge

         Diane M. (“Plaintiff”) appeals from the Social Security Commissioner's final decision rejecting her application for Social Security disability insurance benefits (“DIB”).[1] For the reasons set forth below, the Commissioner's decision is affirmed.



         Plaintiff filed an application for DIB and alleged disability beginning on February 18, 2015. See Administrative Record (“AR”) 145. After a hearing, an Administrative Law Judge (“ALJ”) issued an unfavorable decision on January 23, 2018. See AR 13-22. The ALJ concluded that Plaintiff had the severe impairments of degenerative disc disease and obesity. See AR 15. The ALJ also concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments. See AR 17. The ALJ then determined that Plaintiff's residual functional capacity (“RFC”) limited her to light work with certain additional limitations. See AR 18. The ALJ concluded that Plaintiff was not disabled, because she could perform her past work as a clerk, cable assembler, and repair clerk, assembler, as generally performed. See AR 21-22. This action followed. See Dkt. 1.



         The parties dispute whether the ALJ: (1) properly considered Plaintiff's subjective symptom testimony, (2) correctly found that Plaintiff's knee osteoarthritis was non-severe, (3) “fully developed the record, ” and (4) “provided a complete” RFC. See Dkt. 17, Joint Submission (“JS”) at 3.

         A. Plaintiff's Symptom Testimony

         The Court engages in a two-step analysis to review the ALJ's evaluation of Plaintiff's symptom testimony. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. See id. If the claimant satisfies this first step, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of symptoms only by offering specific, clear and convincing reasons for doing so. See id. “[O]nce the claimant produces objective medical evidence of an underlying impairment, an adjudicator may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc).

         At the 2017 hearing, Plaintiff testified that she was 5'4” and weighed 215 pounds. See AR 30. She last worked in May 2014 as a certified nursing assistant and was laid off after failing a physical fitness test. See AR 31. She had looked for work since that time as a nurse's aide but could not “really do [the job] anymore.” AR 31. She could not lift more than 15 pounds or “move around that much” because of hip, knee, back, and neck pain. AR 34. She could not exercise “per se.” AR 35. She drove “very little, ” perhaps three times in the last year, due to her eyesight. AR 35. At the time of the hearing, however, she had almost 20/20 vision after cataract surgery. See AR 36. She could walk only a block before being in a “tremendous amount of pain, ” perhaps a block and a half if she was “pushing it.” AR 41. She could not sit for more than half an hour or stand for more than half an hour, forty-five minutes if she was “pushing it.” AR 40, 42.

         The ALJ found that Plaintiff's testimony about the intensity, persistence, and limiting effects of the symptoms were inconsistent with the evidence of record. See AR 19. Specifically, the ALJ found that Plaintiff's claims conflicted with the medical evidence and her reported daily activities. See id. The ALJ did not find any malingering. Therefore, the ALJ was required to provide specific, clear and convincing reasons for rejection of Plaintiff's testimony. See Trevizo, 871 F.3d at 678.

         Plaintiff does not contest that the objective medical evidence was not consistent with her subjective symptom testimony. See JS at 3-12. A physical exam in March 2015 reflected full range of motion of the neck, stable gait, and normal extremity strength. AR 20 (citing AR 437-41). Plaintiff received SI joint and lumbar injections, which improved her pain. AR 20 (citing AR 448, 456, 464, 474, 567, 578-79). January 2016 physical exams reflected stable back pain and normal gait and motor strength. AR 20 (citing AR 710, 876, 960-61). After reporting knee pain in 2016, she lost weight on the doctor's recommendation and her symptoms improved. AR 20-21 (citing AR 999-1000, 1126, 1300). At various points in 2015 and 2016, Plaintiff reported exercising every day at moderate to strenuous levels. AR 578 (in August 2015, “Plaintiff exercises 140 minutes per week at a moderate to strenuous level”), 592 (in August 2015, noting that Plaintiff exercises for 20 minutes a day at a moderate to strenuous level, like taking “a brisk walk”), [2] 1085 (same in May 2016), 1271 (increased to 210 minutes per week at moderate to strenuous level in August 2016). In short, nothing in the medical record suggests that Plaintiff was at any time incapable of exercising or of walking more than a block and a half without tremendous pain.

         Although an ALJ may consider a lack of medical evidence, it “cannot form the sole basis for discounting pain testimony.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, the ALJ also rejected Plaintiff's subjective symptom testimony because her reported daily activities were inconsistent with her testimony. Plaintiff's allegations at the hearing were extreme: she could not walk for more than a block without being in “tremendous pain” and was incapable of standing or sitting for more than forty-five minutes. Indeed, in her function report, she claimed that she could ...

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