Opinion
3:22-cv-00723-HZ
02-23-2023
David S.,[1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
Robyn M. Rebers Robyn M. Rebers, LLC PO Box 3530 Wilsonville, OR 97070 Attorney for Plaintiff Natalie K. Wight United States Attorney Renata Gowie Civil Division Chief District of Oregon Lisa Goldoftas Special Assistant United States Attorney Social Security Administration Office of the General Counsel Attorneys for Defendant
Robyn M. Rebers Robyn M. Rebers, LLC PO Box 3530 Wilsonville, OR 97070 Attorney for Plaintiff
Natalie K. Wight United States Attorney Renata Gowie Civil Division Chief District of Oregon Lisa Goldoftas Special Assistant United States Attorney Social Security Administration Office of the General Counsel Attorneys for Defendant
OPINION & ORDER
MARCO A. HERNANDEZ UNITED STATES DISTRICT JUDGE
Plaintiff David S. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (“DIB”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). The Court affirms the Commissioner's decision.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB on July 2, 2018, alleging an onset date of June 29, 2016, later amended to June 29, 2018. Tr. 13. Plaintiff's date last insured (“DLI”) is December 31, 2020. Tr. 15. His application was denied initially and on reconsideration. Tr. 13.
Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record, filed herein as Docket No. ECF 7-1.
On April 14, 2021, and September 16, 2021, Plaintiff appeared with counsel for hearings before an Administrative Law Judge (“ALJ”). Tr. 13. On September 24, 2021, the ALJ found Plaintiff not disabled. Tr. 10. The Appeals Council denied review. Tr. 1.
FACTUAL BACKGROUND
Plaintiff originally alleged disability based on cochlear implants and loss of hearing. Tr. 70. On his date last insured, he was 65 years old. Tr. 20. He has at least a high school education and past relevant work experience as a maintenance machinist supervisor, CNC machinist, and machinist. Tr. 20.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if they are unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled. Id.
In step three, the Commissioner determines whether the claimant's impairments, singly or in combination, meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the Commissioner meets their burden and proves that the claimant can perform other work that exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after his alleged onset date through his date last insured. Tr. 15. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: “hearing loss (with cochlear implants), bilateral varicose veins, obesity.” Tr. 15. The ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 16. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform medium work as defined in 20 C.F.R. § 404.1567(c) with the following limitations:
The claimant is limited to frequent climbing of ramps or stairs and occasional climbing of ladders, ropes, or scaffolds. The claimant is limited to frequent stooping, kneeling, crouching, and crawling. The claimant must avoid working in wet environments. The claimant must avoid all exposure to workplace hazards such as operational control of heavy machinery, hazardous machinery, and unprotected heights. He is limited to jobs that require only occasional communication with the general public, coworkers, and supervisors. No exposure to more than a ‘moderate' noise intensity level as described in the Selected Characteristics of Occupations.Tr. 16. Because of these limitations, the ALJ concluded that Plaintiff could not perform his past relevant work. Tr. 20. But at step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff could have performed, such as “industrial cleaner,” “floor waxer,” and “hospital cleaner.” Tr. 21. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 21.
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings “are based on legal error or are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's”) (internal quotation marks omitted).
DISCUSSION
Plaintiff argues that the ALJ erred by (1) failing to provide clear and convincing reasons to reject Plaintiff's subjective symptom testimony; (2) discounting the medical opinion of Dr. Thomas Davenport, MD; and (3) omitting several limitations supported by substantial evidence from the RFC. Pl. Op. Br. 2, ECF 8. The Court concludes that the ALJ did not harmfully err and affirms the Commissioner's decision.
I. Subjective Symptom Testimony
Plaintiff argues that the ALJ failed to provide clear and convincing reasons to reject his symptom testimony. Pl. Op. Br. 5. The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). The ALJ engages in a two-step analysis for subjective symptom evaluation. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (superseded on other grounds). First, the ALJ determines whether there is “objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal quotations omitted). Second, “if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.” Id. (internal quotations omitted).
When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant's testimony by simply reciting the medical evidence in support of his or her residual functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001); see alsoOrteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discount the claimant's testimony.”).
Plaintiff worked as a maintenance machinist for a manufacturer of parts for truck trailers between October 1979 and June 2018. Tr. 222. He reported that he stopped working because his work environment was too noisy with his cochlear implants, and he could no longer perform his job duties. Tr. 239.
Plaintiff completed a function report in July 2018. Tr. 239-246. Plaintiff's reported daily activities include preparing meals, seeing to his daily hygiene, performing a number of household chores, doing yardwork, paying bills, running errands, reading the news, and watching TV. Tr. 240. He serves as the legal custodian for his stepfather, who lives in a retirement center. Tr. 240. Plaintiff handles his stepfather's finances, dispenses his medications, arranges for transportation to appointments, and buys items at the store for him. Tr. 240. His wife assists him with this as needed. Tr. 240.
Plaintiff reported that he used to be able to hear normally and talk on the phone and in noisy places. Tr. 240. He reported that with his cochlear implants, he worried about the processors being detached or jarred during physically demanding activities. Tr. 240. He reported that he could not hear when he took his processors off at night, and he worried that he would not hear if there were a nighttime emergency. Tr. 240. He removes the processors for his cochlear implants to bathe because water could damage them. Tr. 241. He did not need reminders to see to his personal needs or to take medication, and he reported being able to cook a full range of meals. Tr. 241. His household chores included food preparation, cleaning, laundry, mowing, household repairs, and yardwork. Tr. 242. He reported that the chores took about six hours of his day. Tr. 242. Plaintiff reported going outside “every day, several times a day.” Tr. 242. He can drive himself. Tr. 242. He shops in stores and online. Tr. 242. He reported no difficulty handling money. Tr. 243.
In terms of hobbies, Plaintiff reported that he watched TV and read every day. Tr. 243. He went camping occasionally. Tr. 243. He used to ride a bicycle, ski, and play softball and basketball, but no longer engages in these activities because he worries that he could damage the processors for his cochlear implants or struggle to communicate. Tr. 243. He reported being less physically active since getting the implants. Tr. 243. He did not regularly go to particular events or locations, but spent all day with his wife. Tr. 243. He reported going out to eat less often after getting his implants because it was hard to communicate with background noise. Tr. 244.
Plaintiff reported difficulty hearing, completing tasks, concentrating, understanding, and following instructions. Tr. 244. All of these difficulties were traceable to his hearing loss. Tr. 244. Without noise, his concentration was unlimited. Tr. 244. Plaintiff reported that he could walk one mile without needing a rest, and that he needed five minutes to rest. Tr. 244. Plaintiff reported that he handed stress and changes in routine well. Tr. 245. He reported needing glasses and cochlear implants all the time, but did not take any medications. Tr. 245.
At his hearing in April 2021, Plaintiff testified that he stopped working because he couldn't hear properly on the job. Tr. 46. He testified that there was a lot of background noise at his workplace. Tr. 47. He testified that after he got his cochlear implants, he was almost hit by forklifts at work because he couldn't figure out where the sounds were coming from. Tr. 47. He was instructed not to weld while wearing the processors for his implants because there was a risk that they could short-circuit. Tr. 47.
Plaintiff testified that he was diagnosed with otosclerosis, a disease of the middle ear that affects hearing. Tr. 49. He started to have problems with his hearing in the mid-1990s. Tr. 49. He had a stapedectomy on his right ear in 1996 and on his left ear in 2000. Tr. 49. He had a revised stapedectomy on his left ear in 2015. Tr. 49. He testified that he also has nerve damage to his ears and suffers from tinnitus. Tr. 49.
Plaintiff testified that he could hear “rather well” in a quiet environment, but not 100%. Tr. 54. He testified that a restaurant or a grocery store was a challenge because of background noise such as music and people talking. Tr. 54. He testified that he had some issues with dizziness when he got up in the morning before he retired. Tr. 54. He testified that on six occasions he had to call in and say he couldn't work because of the dizziness. Tr. 54. He testified that his audiologists told him that this likely happened because fluid in the cochlear had to equalize. Tr. 54-55. He testified that this happens to him about two to three times per month. Tr. 55. He does not fly or drive when this happens. Tr. 55.
In addition to his hearing loss, Plaintiff testified that he had issues with one of his legs due to an old injury he suffered in 1975. Tr. 50. He testified that for over 20 years he had worn compression socks on both legs. Tr. 50. He testified that in February 2018 his doctor found thrombosis in his shin where the injury occurred. Tr. 50. He had poor circulation and swelling in both legs, though it was worse in his right leg. Tr. 50-51. Plaintiff testified that because of the swelling, he needed to sit down two or three times per day. Tr. 51. He testified that he sat down at lunchtime, and if he did not, his leg would swell to the point that it was painful, and he needed to elevate it. Tr. 51. Plaintiff testified that he sat and elevated his leg two to three times per day to at least waist height. Tr. 51-52. He elevated them for 10-20 minutes at a time. Tr. 52. He testified that he wore the compression socks all day and took them off at night. Tr. 52.
Plaintiff testified that he could go on short walks but not long hikes. Tr. 53. He said that if he was on his feet all day, his legs would “balloon out” and he would have pain. Tr. 53. He testified that when he filed for disability, his leg was getting to the point where it would keep him from doing his job. Tr. 53. He testified that he did not mention his issues with his leg when he filed for disability benefits because he thought his cochlear implants alone were enough. Tr. 51.
ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms but concluded that Plaintiff's testimony was not entirely consistent with the record. Tr. 17. The ALJ discounted Plaintiff's testimony based on (1) his activities of daily living; (2) routine, conservative treatment; and (3) lack of support in or inconsistency with the medical record. Tr. 17-19.
A. Activities of Daily Living
The ALJ found that some of Plaintiff's symptom testimony was inconsistent with his daily activities. Tr. 19. The ALJ noted that Plaintiff said he was “quite busy” since his retirement. Tr. 19. The ALJ then stated that Plaintiff:
reported helping his wife after she had surgery and exercising most days (id.). He also reported helping care for his stepfather, preparing meals, doing house and yard work without assistance, driving, shopping in stores, and spending time watching television (4E/2-5). He reported that he was no longer able to do sports and outdoor activities, but attributed this to communication difficulties, not his leg swelling (id.). He also reported spending time with others in person and on the phone and computer (id.). The reports of doing house and yard work without assistance suggests he can work at the medium exertional level, and the reports of watching television and spending time with others in person and on the phone and computer, suggests he is able to hear and respond to normal communications outside of loud noise environments.Tr. 19. The ALJ also noted that Plaintiff reported that he could listen to talk radio in his diesel truck. Tr. 18.
Contradiction with a claimant's activities of daily living is a clear and convincing reason for rejecting a claimant's testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). There are two grounds for using daily activities to support an adverse credibility determination:
(1) when activities meet the threshold for transferable work skills and (2) when activities
contradict a claimant's other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). In order to impact a claimant's credibility, the activity has to be “inconsistent with claimant's claimed limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ cannot mischaracterize statements and documents in the record or take these out of context in order to reach his or her conclusion on the claimant's credibility. Id. at 722-23. In addition, the claimant's ability to perform limited basic daily activities is not a clear and convincing reason to reject a claimant's testimony. See id. at 722 (“[D]isability claimants should not be penalized for attempting to lead normal lives in the face of their limitations.”); Webb, 433 F.3d at 688. (“The mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from [his] credibility as to [his] overall disability. One does not need to be utterly incapacitated in order to be disabled.”) (internal quotation omitted).
Plaintiff asserts that there is no contradiction between his activities and his testimony about his difficulty hearing. Pl. Op. Br. 8. The ALJ relied on Plaintiff's ability to watch television and speak with others in person and on the phone, as well as listen to talk radio in his diesel truck. Tr. 18-19. Plaintiff argues that these activities “do not require the ability to hear or concentrate with background noise,” which was what he testified he struggled to do. Pl. Op. Br. 9. Plaintiff points out that he could adjust the volume on the radio and argues that listening to talk radio is not like a conversation. Pl. Op. Br. 9. The Court concludes that the ALJ's view is reasonable and thus must be upheld. The ALJ also noted that Plaintiff shopped in stores in person. Tr. 19. While Plaintiff testified that the background noise in stores made hearing more of a challenge, he also reported shopping in stores regularly. Tr. 54, 240, 242. In addition, Plaintiff reported to his doctors that he watched television while his wife was on the phone next to him. Tr. 431. The ALJ could reasonably conclude from Plaintiff's activities that his ability to hear with background noise was not as limited as he claimed. The ALJ did not err in relying on Plaintiff's activities in determining that a limit of moderate noise was appropriate.
Plaintiff also challenges the ALJ's reliance on his activities in discounting his testimony about his varicose veins. Pl. Op. Br. 12-14. The ALJ relied in part on Plaintiff's reported daily chores. Tr. 19. Plaintiff reported that he spent approximately six hours per day on chores including yardwork, laundry, cleaning, and household repairs. Tr. 240. These chores require physical exertion. At his annual exam in November 2018, Plaintiff reported that he was active and exercised most days; his physician noted that Plaintiff had “good exercise tolerance.” Tr. 398. The ALJ correctly noted that Plaintiff reported that he did not play sports anymore for hearing-related reasons, not reasons related to his legs. Tr. 19, 243. Plaintiff also reported to his physician in November 2018 that his edema had improved now that he was no longer standing all day at work. Tr. 398. He testified at the hearing that he could generally elevate his legs at work during his lunch break and only had problems when he did not. Tr. 51. Before retirement, Plaintiff reported to one of his medical providers that he had two breaks at work and elevated his legs during those breaks. Tr. 292. The ALJ reasonably concluded that Plaintiff could manage his symptoms in the workplace by elevating his legs during normal breaks without an accommodation. Tr. 17. Plaintiff's testimony about his activities provides substantial evidence to support the ALJ's conclusion that Plaintiff could engage in work at the medium exertional level and did not need an accommodation to elevate his legs.
In sum, the ALJ did not err in her assessment of Plaintiff's activities.
B. Course of Treatment
The ALJ found Plaintiff's symptom testimony was inconsistent with his course of treatment for his varicose veins. Tr. 17-18. An ALJ may discount a plaintiff's testimony about the severity of an impairment based on evidence of conservative treatment. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (physical conditions treated with over-the-counter pain medication); Tommasetti, 533 F.3d at 1040 (physical conditions treated with “physical therapy and the use of anti-inflammatory medication, a transcutaneous electrical nerve stimulation unit, and a lumbosacral corset”). Furthermore, “evidence of medical treatment successfully relieving symptoms can undermine a claim of disability.” Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017). See also Perry H. v. Saul, No. 1:19-CV-00050-AA, 2020 WL 2764614, at *5 (D. Or. May 27, 2020).
If the plaintiff provides a good reason not to seek more aggressive treatment, then a conservative course of treatment is not a valid basis to discount a claimant's testimony. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (holding that claimant's failure to take stronger pain medication was reasonable where claimant testified that he suffered serious side effects from one medication and his insurance did not cover another); Orn, 495 F.3d at 638 (holding that claimant's failure to follow diet recommended to treat obesity was not probative of credibility because such treatment was not likely to be effective).
The ALJ noted that Plaintiff's provider recommended compression socks to treat his varicose veins and that Plaintiff did not seek additional treatment during the period at issue. Tr. 17-18. Plaintiff's medical records reflect that his doctors only ever recommended compression socks to treat his varicose veins. Tr. 292, 410. This is consistent with Plaintiff's testimony. Tr. 50. Plaintiff did not report taking any medication for pain. Tr. 245. Other than compression socks, Plaintiff testified that he elevated his leg for 10-20 minutes two or three times per day. Tr. 51-52. The ALJ is correct that Plaintiff's course of treatment for his legs was routine and conservative.
Plaintiff argues that this is not a clear and convincing reason to discount his testimony because his condition improved after he stopped working, so there was no need for him to seek further treatment. Pl. Op. Br. 13. However, in February 2018, only a few months before Plaintiff retired, his provider did not recommend any treatment beyond compression socks and recommended that he “manage [his legs] conservatively.” Tr. 292. The ALJ reasonably concluded that the condition of Plaintiff's legs was not very debilitating because it was adequately managed with compression socks both before and after he retired. Plaintiff's course of treatment supports the ALJ's conclusion that the condition of Plaintiff's legs did not prevent him from engaging in work at the medium exertional level or require further accommodations.
C. Objective Medical Evidence
The ALJ found that some of Plaintiff's testimony was unsupported by or inconsistent with the medical record. Tr. 17-18. An ALJ may discount a claimant's testimony based on a lack of support from objective medical evidence, but this may not be the sole reason. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (holding that “an ALJ may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain.”); Taylor v. Berryhill, 720 Fed.Appx. 906, 907 (9th Cir. 2018) (explaining that a “lack of objective medical evidence cannot be the sole reason to discredit claimant's testimony,” and therefore holding that the ALJ failed to provide clear and convincing reasons for discounting the claimant's testimony) (citation omitted); Heltzel v. Comm'r of Soc. Sec. Admin., No. 191287, 2020 WL 914523, at *4 (D. Ariz. Feb. 26, 2020) (stating that “[b]ecause the ALJ's other reasons for rejecting Plaintiff's testimony were legally insufficient, a mere lack of objective support, without more, is insufficient to reject Plaintiff's testimony.”). However, “[w]hen objective medical evidence in the record is inconsistent with the claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022).
The ALJ found that Plaintiff's testimony about symptoms related to his cochlear implants and varicose veins was inconsistent with the medical evidence of record. Tr. 17-18. With respect to Plaintiff's hearing, the ALJ noted that Plaintiff's surgical procedures for his cochlear implants went well, and that his follow-up appointments gave largely positive results. Tr. 17-18. In particular, the ALJ noted that in September 2019, Plaintiff “demonstrated 98 percent word recognition, which strongly suggests he would be able to hear and communicate with others adequately in moderate or less noise environments.” Tr. 18 (citing Tr. 375). The ALJ acknowledged that a November 2020 exam showed that Plaintiff had “difficulty with word discrimination in high noise environments.” Tr. 18 (citing Tr. 435).
Plaintiff first challenges the ALJ's statement that he failed to seek treatment for hearing loss in June 2018 when he stopped working. Pl. Op. Br. 8; Tr. 17. Plaintiff is correct that he did seek additional treatment for his hearing loss in the form of adjustments to his cochlear implants. The ALJ's own analysis acknowledges this. Tr. 18. The ALJ is correct that these follow-up appointments reflect that Plaintiff's cochlear implants were functioning well and that Plaintiff was generally satisfied with them. In November 2018, Plaintiff told his primary care provider that the implants worked well “outside of the loud environments.” Tr. 397. In February 2019, Plaintiff reported to his audiologist that “things are going well” but that high frequencies were “almost aggravating” and “certain situations” were difficult; the audiologist made adjustments, and Plaintiff was pleased. Tr. 373-74. Next, Plaintiff questions the ALJ's reliance on the 98% score in audiometric testing, pointing out that the test was performed in a quiet environment. Pl. Op. Br. 9-10; Tr. 375. Plaintiff is correct that this test result does not contradict his testimony that he could hear well in quiet environments but struggled with background noise. Tr. 54. Ultimately, Plaintiff's audiology records indicate that he struggles with “loud” noise and some background noise. This is largely consistent with his testimony. It is also, however, consistent with the ALJ's limitations to a moderate (as opposed to loud) noise environment and only occasional communications with others.
Plaintiff next asserts that the ALJ erred in rejecting his reported difficulties with concentrating, understanding, and completing tasks. Pl. Op. Br. 11. The ALJ cited to a mental status exam showing no cognitive impairment. Tr. 18. Plaintiff correctly points out that he reported difficulties in concentrating, understanding, and completing tasks only to the extent that his hearing loss prevented him from hearing and understanding spoken instructions. Tr. 244. Plaintiff's mental status exam is irrelevant to this; indeed, Plaintiff's overall cognition and mental health are not at issue in his claim of disability. Defendant is correct that Plaintiff points to nothing in the record showing difficulty concentrating. Def. Br. 6-7, ECF 12. Ultimately, the ALJ did address Plaintiff's concerns about the effect of his hearing loss on his ability to communicate with others, the only reason for which Plaintiff stated he had trouble concentrating. Any error by the ALJ in relying on the mental status exam was harmless. Molina, 674 F.3d at 1115.
Plaintiff also argues that the ALJ erred in discounting his testimony based on his description of his dizziness. Pl. Op. Br. 12; Pl. Reply 2, ECF 13. Plaintiff testified that two or three times per month, he had issues with dizziness in the morning, that it began before he retired, and that he understood it to be related to his hearing loss. Tr. 54-55. The ALJ observed that Plaintiff reported no dizziness or vertigo after a surgery related to his cochlear implants in September 2017. Tr. 17 (citing Tr. 302). The ALJ also noted that Plaintiff denied issues with dizziness at a medical appointment in mid-2020. Tr. 18 (citing Tr. 421). The ALJ could reasonably note this apparent contradiction between Plaintiff's testimony at the hearing and his statements to his providers. Furthermore, the ALJ wrote that Plaintiff's “hearing loss and possible dizziness/vertigo could also cause some safety issues, and this was considered in limiting his exposure to workplace hazards.” Tr. 18-19. The ALJ thus made allowances for Plaintiff's dizziness despite questioning Plaintiff's testimony about it. Plaintiff identifies no limitation that the ALJ failed to include in the RFC based on his testimony about his dizziness and in fact appears to suggest that his dizziness does not require any accommodations. Pl. Reply 2. The ALJ did not err.
The ALJ found that Plaintiff's testimony about symptoms related to his varicose veins was not supported by the medical record. Tr. 17-18. In particular, the ALJ stated that leg elevation was not recommended by Plaintiff's medical providers. Tr. 17 (citing Tr. 292). The ALJ is correct that Plaintiff's providers did not recommend elevation, though Plaintiff did tell his providers before he retired that he elevated his legs. Tr. 292, 389. The objective medical evidence thus neither supports nor contradicts Plaintiff's testimony about leg elevation. See Simmons v. Kijakazi, No. 1:21-CV-00779-GSA, 2022 WL 1138114, at *5 (E.D. Cal. Apr. 18, 2022) (a plaintiff's subjective history of elevating legs does not constitute objective medical evidence merely because it is recited to a treating provider and transcribed in a medical record).
In conclusion, the ALJ did not harmfully err in her evaluation of Plaintiff's symptom testimony.
II. Medical Opinion Evidence
Plaintiff challenges in part the ALJ's finding that the opinion of state agency consulting physician Thomas Davenport, MD, was not persuasive. Pl. Op. Br. 15-17. New regulations about weighing medical opinion evidence apply to claims filed on or after March 27, 2017. Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. Under the new regulations, ALJs are no longer required to give deference to any medical opinion, including treating source opinions. id.Instead, the agency considers several factors. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). These are: supportability, consistency, relationship to the claimant, specialization, and “other factors.” 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The “most important” factors in the evaluation process are supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
Under this framework, the ALJ must “articulate . . . how persuasive [they] find all of the medical opinions” from each doctor or other source. 20 C.F.R. §§ 404.1520c(b), 416.920c(b)(2). In doing so, the ALJ is required to explain how supportability and consistency were considered and may explain how the other factors were considered. 20 C.F.R §§ 404.1520c(b)(2), 416.920c(b)(2). When two or more medical opinions or prior administrative findings “about the same issue are both equally well-supported . . . and consistent with the record . . . but are not exactly the same,” the ALJ is required to explain how the other factors were considered. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). “Even under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).
State agency medical consultant Dr. Davenport performed a physical residual functional capacity assessment of Plaintiff on October 11, 2019. Tr. 82-83. Dr. Davenport concluded that Plaintiff had no exertional, postural, manipulative, or visual limitations. Tr. 82. He concluded that Plaintiff did have communicative limitations. Tr. 82. Dr. Davenport stated that “Due to some sound distortion a /w cochlear implants, oral instructions must be given in a quiet environ.” Tr. 82. He also opined that Plaintiff should avoid concentrated exposure to noise and avoid all exposure to wetness because the implants were sensitive to water. Tr. 83. He stated that Plaintiff “should avoid situations where fine noise discrimination is needed for his safety.” Tr. 83. In rendering his opinion, Dr. Davenport noted an audiology test showing “100% correct responses to SPL at 60dB” with the implants, and noted that Plaintiff could listen to talk radio while driving his truck. Tr. 83. He also stated that Plaintiff could turn off his implants “in the context of loud noise.” Tr. 83. He noted a 98% score on Plaintiff's HINT test in September 2019. Tr. 81.
The ALJ found Dr. Davenport's assessment “not persuasive.” Tr. 19. Plaintiff challenges the ALJ's finding on the assessment of his hearing-related limitations only. Pl. Op. Br. 16. The ALJ stated that Dr. Davenport's restriction to a quiet environment for receiving instructions was inconsistent with his observations “that the claimant had 98 percent word recognition on HINT testing” and “was able to listen to talk radio while driving his truck.” Tr. 19 (citing Tr. 80-81). Plaintiff argues that the ALJ erred in substituting her own conclusion for a physician's. Pl. Op. Br. 16. Substantial evidence supports the ALJ's conclusion. As discussed above, the ALJ reasonably concluded that Plaintiff's ability to listen to talk radio in his diesel truck was not consistent with a need to restrict him to quiet environments. Dr. Davenport noted in his report that Plaintiff engaged in this activity. Tr. 83. Furthermore, Dr. Davenport noted that Plaintiff had 100% correct responses to SPL at 60dB and mentioned “loud noise” as the problem. Tr. 83. The ALJ reasonably concluded that the need for a quiet environment (as opposed to moderate noise level) was not consistent with the medical test results, activities, and findings Dr. Davenport noted in his assessment. The ALJ did not err in rejecting Dr. Davenport's opinion.
III. RFC Assessment
Plaintiff argues that the ALJ failed to include all functional limitations in the RFC. Pl. Op. Br. 17-18. The RFC is the most a person can do, despite his or her physical or mental impairments. 20 C.F.R. § 404.1545(a). In formulating an RFC, the ALJ must consider all medically determinable impairments, including those that are not “severe,” and evaluate “all of the relevant medical and other evidence,” including the claimant's testimony. Id.; SSR 96-8p, available at 1996 WL 374184. In determining a claimant's RFC, the ALJ is responsible for resolving conflicts in the medical testimony and translating the claimant's impairments into concrete functional limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only limitations supported by substantial evidence must be incorporated into the RFC and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). An “RFC that fails to take into account a claimant's limitations is defective.” Valentine, 574 F.3d at 690.
Plaintiff asserts that the ALJ failed to include several limitations in the RFC. Pl. Op. Br. 18. Specifically, Plaintiff argues that the ALJ should have included (1) limitation to a quiet noise environment, (2) a standing/walking limitation, and (3) the ability to elevate his legs during the day. Pl. Op. Br. 18. The Court concludes that substantial evidence supports the ALJ's RFC. As discussed above, the ALJ did not harmfully err in evaluating Plaintiff's testimony or Dr. Davenport's medical opinion. The Court has already concluded that the ALJ's limitation to a moderate noise environment is supported by substantial evidence. Supra at 12. Plaintiff does not clarify in his briefing what standing/walking limitation is necessary or why it is necessary. The ALJ reasonably relied on the medical record and Plaintiff's activities and course of treatment in concluding that no such limitation was necessary. Finally, the ALJ reasonably concluded, based on Plaintiff's testimony at the hearing and statements to his medical providers, that Plaintiff could elevate his legs during his normal breaks at work without an accommodation. Supra at 12. The ALJ did not err in formulating the RFC.
CONCLUSION
Based on the foregoing, the Commissioner's decision is AFFIRMED.
IT IS SO ORDERED.