United States District Court, C.D. California, Eastern Division
MEMORANDUM OPINION AND ORDER
DOUGLAS F. McCORMICK United States Magistrate Judge
M. (“Plaintiff”) appeals from the Social Security
Commissioner's final decision rejecting her application
for Social Security disability insurance benefits
(“DIB”). For the reasons set forth below, the
Commissioner's decision is affirmed.
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.
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.
Plaintiff's Symptom Testimony
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).
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.
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
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”),  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
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 ...