Street v. Comm'r of Soc. Sec. Admin.

Full title: Ann Elaine Street, Plaintiff, v. Commissioner of Social Security…

Court: United States District Court, District of Arizona

Date published: Apr 4, 2022

CV-21-00179-PHX-JJT (DMF) (D. Ariz. Apr. 4, 2022)

Opinion

CV-21-00179-PHX-JJT (DMF)

04-04-2022

Ann Elaine Street, Plaintiff, v. Commissioner of Social Security Administration, Defendant.

Honorable Deborah M. Fine United States Magistrate Judge

TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:

REPORT AND RECOMMENDATION

Honorable Deborah M. Fine United States Magistrate Judge

This matter is on referral to the undersigned for pretrial proceedings and a report and recommendation pursuant to 28 U.S.C. § 636(b)(1) and Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 14)¹ Plaintiff Ann Elaine Street (“Claimant”) appeals Defendant Commissioner of Social Security's (“Commissioner”'s) decision to adopt the Administrative Law Judge's (“ALJ's”) ruling denying her application for Disability Insurance Benefits under the Social Security Act. (Doc. 1) On February 2, 2021, Claimant filed a Complaint seeking judicial review of that denial. (Id.)

1 Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-21-00179-PHX-JJT (DMF).

In her Complaint, Claimant argued that ALJ Paul Gaughen erred by: (1) not properly evaluating the opinions of Claimant's physicians regarding her symptoms and physical limitations; (2) not properly weighing Claimant's symptom testimony when assessing her credibility and evaluating her Residual Functional Capacity (“RFC”); (3) not adequately posing hypothetical questions to the Vocational Expert at Claimant's hearing; (4) not considering all of Claimant's impairments when assessing her RFC; and (5) not considering Claimant's medical record as a whole and substituting his own opinion for that of medical sources. (Doc. 1 at 4-6) Claimant also contended that the Appeals Council's decision failed to adequately explain the ALJ's decision or to discuss Claimant's arguments and evidence. (Id. at 5) The Court now addresses Claimant's Opening Brief (Doc. 23), Commissioner's Response (Doc. 24), and Claimant's Reply (Doc. 25).

For the reasons set forth below, it is recommended that the Court affirm the ALJ's decision dated July 20, 2020 (Doc. 20-3 at 20-29).

I. BACKGROUND

A. Application and Social Security Administration Review

Claimant filed her application for disability insurance benefits in March 2018 at the age of 59, alleging a disability onset date of May 30, 2013. (Doc. 20-6 at 2) Claimant later amended her alleged disability onset date to May 30, 2014. (Doc. 20-3 at 20, 86) The state agency determined that Claimant was not disabled on initial review in July 2018 (Doc. 204 at 2-25) and did so again on reconsideration in April 2019. (Id. at 26-52) ALJ Gaughen conducted a hearing on Claimant's application on June 2, 2020 (Doc. 20-3 at 38-88) and issued a notice of unfavorable decision on July 20, 2020. (Id. at 17-29) Claimant filed an appeal with the Appeals Council, which was denied by notice dated December 10, 2020. (Id. at 2-5) Upon the Appeals Council's action, the ALJ's decision became the Commissioner's final decision on Claimant's application. (Id. at 2)

B. Claimant's Medical Treatment and Imaging

1. Hospitalizations

In 2013, Claimant underwent surgeries to correct vaginal vault prolapse including a rectocele and a cystocele, and to implant a bladder sling. (Doc. 20-8 at 6-46) On a review of symptoms, Claimant reported daily headaches in groups or clusters. (Id. at 8) She also reported muscle spasms in her neck and lower back pain. (Id. at 6, 9) In early 2016, Claimant was diagnosed with papillary thyroid cancer and underwent a total thyroidectomy. (Doc. 20-9 at 4-52) Claimant's thyroidectomy was followed by treatment with radioactive iodine-131. (Id. at 53-59)

2. Imaging

In February 2006, many years before her alleged onset date of disability of May 30, 2014, Claimant underwent imaging of her cervical spine for headaches and neck pain, and also of her brain and internal auditory canals. (Doc. 20-8 at 2-3) The MRI of Claimant's cervical spine revealed a right lateral disc protrusion at ¶ 3-4 that impinged on the exiting right C4 nerve root. (Id. at 2) The rest of Claimant's cervical spine appeared normal, as did her brain and internal auditory canals. (Id. at 2-3)

In December 2010, MRIs of Claimant's lumbar spine showed: a medium-sized disc bulge at ¶ 3-L4 causing mild to moderate neural foraminal narrowing, minimally displacing the right L3 nerve root; a medium-sized disc bulge at ¶ 4-L5 resulting in mild to moderate foraminal narrowing; a small right foraminal/lateral recess disc protrusion at ¶ 5-S1 that contacted the right S1 nerve sheath but without causing significant central spine stenosis; and a small disc bulge at ¶ 5-S1 that resulted in mild to moderate right, and mild left neural foraminal narrowing. (Doc. 20-10 at 172) Views in a bending position indicated mild disc space narrowing along with endplate osteophytic ridging at ¶ 4-L5 and L5-S1. (Id. at 175)

X-rays were performed on Claimant's right hip in December 2013. (Doc. 20-13 at 6) On three views, the impression was of mild osteoarthritis, no osteophytes, and no cystic changes in the femoral neck or acetabular rim. (Id.)

Additional MRIs were performed in May 2014 of Claimant's cervical spine and brain. (Doc. 20-10 at 174-176) The brain imaging results were negative and unchanged compared to a previous brain MRI dated April 2009. (Id.at 175) An MRI of the cervical spine at ¶ 3-C4 displayed “mild posterior disc-osteophyte complex effacing the ventral thecal sac without cord compression or central canal spinal stenosis”; “mild right-sided uncovertebral spurring and facet hypertrophy resulting in mild to moderate right-sided neural foraminal stenosis without central canal spinal stenosis.” (Id. at 174) At ¶ 5-C6, the imaging showed a “tiny central disc protrusion mildly effacing the ventral sac in the midline without central canal spinal stenosis or neural foraminal stenosis.” (Id.) Claimant's cervical spine was also x-rayed with flexion and extension, with the following findings: “Normal alignment. No abnormal translation on flexion or extension. Minimal anterolisthesis of C4 on C5 in flexion measures less than 2 mm and is probably within normal limits. No fractures. Prevertebral soft tissues are normal. Disc space heights are well-maintained. No evidence of bony foraminal stenosis.” (Id. at 176)

In July 2015, Claimant underwent imaging of her hands, feet, and ankles with normal findings. (Doc. 20-8 at 138-140)

In October 2017, Claimant underwent MRI imaging of her brain, and cervical, thoracic, and lumbar spine. (Doc. 20-10 at 177-180) The images of Claimant's thoracic spine were interpreted to demonstrate “normal cord signal and morphology” with “no frank disc herniation, spinal cord compression, or nerve root impingement[.]” (Id. at 177) The results of Claimant's cervical spine detailed: “vertebral bodies are normal in height and alignment”; “disc desiccation is present throughout”; “C3-C4, 1.5mm broad-based disc protrusion minimally indents the ventral thecal sac without spinal canal or neural foraminal compromise”; and “C5-C6, 1 mm disc protrusion indents the ventral thecal sac without spinal canal or neural foraminal compromise.” (Id. at 178) The scan of Claimant's lumbar spine resulted in findings that: “[t]he lumbar vertebral bodies are normal in height”; trace disc bulges at ¶ 1-L2 and L2-L3 “without spinal canal or neural foraminal compromise”; 1 mm symmetric disc bulge without spinal canal stenosis and negligible neural foraminal narrowing at ¶ 3-L4; a 2 mm disc bulge at ¶ 4-L5 resulting in minimal grade 1 anterolisthesis; and at ¶ 5-S1, moderate disc height loss and spondylotic changes. (Id. at 180) The results of Claimant's brain imaging were “unremarkable.” (Id. at 179)

Claimant underwent additional MRI imaging of her cervical spine in September 2018. (Id. at 213-214) The findings stated that the C3-C4 level was stable compared to imaging from October 2017, and further stated there was “disc bulge-osteophytic ridge which is asymmetric to the right[, ]” and “mild flattening of the ventral aspect of the thecal sac with mild flattening of the ventral aspect of the spinal cord.” (Id. at 213) Also at the C3-C4 level, the findings included “uncovertebral joint and facet degenerative changes with moderate right neural foraminal stenosis” and patent left neural foramen. (Id.) Noted at ¶ 5-C6 was a “disc bulge which flattens the ventral thecal sac without cord compression or canal stenosis[, ]” and at ¶ 6-C7, another disc bulge flattening the ventral thecal sac but without cord compression or canal stenosis. (Id.)

An MRI examination was performed of Claimant's right hip on October 15, 2019, which was after Claimant's date last insured of September 30, 2019. (Doc. 20-13 at 2-3) Review of the images resulted in the following impressions: (1) “[m]oderate right-sided gluteus minimus tendinosis with interstitial lamellar appearing areas of intrasubstance degeneration and partial-thickness longitudinal splitting[, ] [n]o full-thickness tearing[, ] [m]ild right-sided gluteus medius tendinosis[, and] [m]ild subgluteal minimus and subgluteal medius bursal inflammation[]”; (2) “[d]eformity and tear of the right antrosuperior acetabular labrum[, ] [f]emoral cam morphology is noted[, ] [a]rticular cartilage of the hip joint is preserved[]”; (3) “[l]eft-sided femoral cam morphology”; and (4) “[m]ild to moderate bilateral greater trochanteric bursal inflammation.” (Id. at 3)

3. Paradise Valley Pain Specialists

Claimant's earliest record of treatment by this practice was in April 2009, well before her alleged onset date of May 30, 2014. (Doc. 20-10 at 158-159) Claimant complained mainly of cervical neck pain that she rated on average at 6 of 10, and at worst 9 of 10. (Id. at 158) She advised that her symptoms commenced when she was 11 when she hit her head in a swimming pool, but that the pain became “really bad” in 2006 and “much, much worse since December 2008.” (Id.) Claimant reported that she had been “scheduled for a laminectomy and foraminotomy at the C3-C4 level” but decided to “explore other options and get another opinion before undergoing surgery.” (Id.) Claimant was observed with limited range of motion in her shoulders without pain, limited range of motion in the cervical and lumbar regions in flexion, extension, and lateral rotation, and limited internal and external rotation of the hips. (Id. at 159) Claimant had severe tenderness over areas of her cervical facet joints and mild paravertebral tenderness over areas of her lumbar facet joints. (Id.) The examination notes state that Claimant had a recent cervical spine MRI that did not “show any significant nerve root impingement” and that although the MRI displayed “some moderate right-sided neural foraminal stenosis at ¶ 3-C4” all of Claimant's symptoms were on the left side. (Id.)

In June 2009, Claimant reported 90% relief of her symptoms and pain rated of 0 out of 10 after facet injections. (Id. at 160) In light of these results, the doctor recommended that Claimant not pursue any additional interventions at that time. (Id. at 161) By the next month, July 2009, some of Claimant's cervical spine pain had returned. (Id. at 163) In September 2009, Claimant reported 70% pain relief, and rated her pain level at 2 out of 10. (Id. at 164) By December 2009, Claimant rated her cervical spine pain at 7 or 8 out of 10, and she requested radiofrequency lesioning. (Id. at 166) Additional facet injections brought only nominal pain relief (Id. at 168), but additional facet injections in a different location later provided 80% pain relief (Id. at 170).

In December 2012, Claimant was seen for neck and left rib pain. (Doc. 20-8 at 4749) Claimant reported 50% improvement in neck pain after facet injections. (Id. at 47) In March 2014, Claimant reported 50% relief after hip injections. (Doc. 20-10 at 136) In May 2014, Claimant stated she obtained only 30% relief after facet injections, in contrast to prior facet injections that had worked “extremely well.” (Id. at 135) She also reported pain in the occipital region. (Id.) In June 2014, Claimant reported 80% relief after an occipital nerve block. (Id. at 133) In July 2014, Claimant requested an additional occipital nerve block because her pain had returned “somewhat” and she was about to leave on a trip to Hawaii. (Id. at 32) During a follow up appointment in August 2014, Claimant reported that her occipital pain was essentially gone, with only residual pain around her temple region. (Id. at 131) In November 2014, Claimant explained that her neck pain had bothered her the most, but that her back was not bothering her much, and the occipital pain was still essentially gone. (Id. at 129)

At an appointment in February 2017, it was noted that the provider had not seen Claimant since 2014 and that Claimant explained she had been addressing her thyroid cancer and was “doing well with regards to her neck pain.” (Id. at 149) In November 2017, Claimant reported that her low back pain was bothering her more and that she obtained 70% relief of lower back pain, “but continues to have upper lumbar pain.” (Id. at 143, 147) The provider observed that Claimant was suffering “no acute distress, ” her range of motion and strength were within normal limits, and that her sensation, coordination, and gait and station were also within normal limits. (Id. at 142) The provider recommended continued physical therapy for low back pain, and lumbar facet injections for upper back pain. (Id.) In December 2017, Claimant advised that she had obtained 80% relief of her lumbar pain. (Id. at 139) However, she complained of thoracic pain. (Id. at 137) In January 2018, Claimant stated that treatment provided 50% thoracic pain relief but that she still suffered mid-thoracic pain. (Id. at 156) In February 2018, Claimant did not “report additional improvement of her pain after the last thoracic facet injection.” (Id. at 152)

4. Midwestern University Multispecialty Clinic

Claimant initially sought treatment at this practice in June 2014 and reported that after her facet injections “did not work so well[, ]” she wanted to give osteopathic manual medicine a try. (Doc. 20-10 at 92) Anthony Will, D.O., noted that Claimant's pain was dull, and mild to moderate. (Id.) The doctor recorded that Claimant was not in acute distress but detected increased myofascial tension throughout Claimant's cranial, cervical, upper extremity, thoracic, rib, and lumbar regions. (Id. at 93-94) Dr. Will recommended osteopathic manipulative treatment (“OMT”) on these areas of Claimant's spine. (Id. at 94) In July 2014, Claimant reported decreased pain, improvement of range of motion, and improvement in her activities of daily living. (Id. at 89)

In March 2018, Dr. Will stated that Claimant presented “after a long hiatus” and noted she was “status post resection of the thyroid for papillary carcinoma.” (Id. at 85) Claimant rated her pain level at 2 and 3 out of 10. (Id. at 84, 88) Claimant reported her mild to moderate pain was lessened with rest and OMT and worsened with excess physical activity. (Id. at 72) Claimant presented in July 2018 with neck pain of 4, and later, 2 out of 10 that had begun several weeks before after she turned her body while backing up her car. (Id. at 209, 210) In August 2018, Claimant presented with a migraine headache she attributed to stiffness in her cervical spine. (Doc. 20-11 at 20) Claimant reported she had taken migraine medication and was feeling better and also that she had been “essentially migraine free for the [previous] month.” (Id.) Claimant rated her low back pain as mild. (Id.) The appointment notes referred to Claimant's “flare up of her migraine headaches and arthritis.” (Id. at 16) In November 2018, Claimant reported getting a flare up of headaches after receiving Botox injections. (Id. at 8) Claimant's back pain was recorded as mild to moderate. (Id.)

In January 2019, Claimant continued to receive OMT treatments as well as Botox and vagal stimulator. Claimant's back pain was characterized as dull and achy, and mild to moderate. (Id. at 101-104) The treatment notes for Claimant's February 5, 2019, appointment state that she reported having migraine headaches 4 nights in a row. (Id. at 93) Claimant stated that she was going on a driving trip soon “and really wanted this pain gone.” (Id.) After OMT treatments, Claimant reported 80% improvement in spinal pain symptoms. (Id. at 96) Later in February 2019, Claimant's treatment notes indicated that she had experienced 3 to 4 migraine headaches weekly prior to receiving Botox treatment, and after Botox treatment had 4 to 6 headaches monthly. (Id. at 97) The notes indicate Claimant reported her migraines began when she was 11 and hit her head on the bottom of a pool, and that she suffered 3 to 4 headaches per week since then. (Id. at 98) Elsewhere, the notes state that Claimant's “severe migraines started after 2002.” (Id.) Claimant reported 99% improvement in her spinal pain symptoms after the OMT treatments. (Id. at 99)

In March 2019, Claimant continued to report increased migraine frequency and intensity. (Doc. 20-12 at 2) By April 2019, Claimant stated that her migraine headaches had improved. (Id. at 10) Continued improvement was noted in May 2019 (Id. at 14) and by June 2019, her migraine headaches were “well-controlled” (Id. at 18). In July 2019, Claimant stated her neck pain was worse and felt different than her usual pain. (Id. at 33) Dr. George Chen noted that after Claimant's most recent cranial OMT, she did not have a migraine headache for 6 weeks, but then had 16 headaches, after which she received Botox treatments and “-mab” and was “now much better.” (Id. at 34) After OMT, Claimant reported 80% improvement in her back pain symptoms. (Id. at 36) In September, Claimant relayed that her migraines were well controlled, although she noted she had experienced two headaches about a week apart, one of which had been triggered by bright lights. (Doc. 20-13 at 55) In October 2019, after Claimant's date last insured, Claimant reported her headaches as stable. (Id. at 59)

In November 2019, Claimant presented to this practice “to fill out disability paperwork.” (Id. at 63) Dr. Will stated that “Patient has significant chronic daily pain. Patient also suffers from migraine headaches with multiple episodes keeping her from work. Patient reports decreased range of motion and moderate to severe pain with limitation in activities of daily living.” (Id.)

In January 2020, David Hume, D.O., observed Claimant's “hypertonic suboccipital muscles and extensor muscles of the cranium/upper cervical region.” (Id. at 117) Despite other tight muscles, Claimant maintained full range of motion in her neck. (Id.) Later in January 2020, Claimant reported her headaches were improved but that her left shoulder and neck were tight and painful. (Id. at 111) Dr. Hume noted that her headaches were less frequent and less severe. (Id. at 114) In February 2020, Claimant reported continued left neck and lower back pain. (Id. at 107) Claimant also stated that she was walking every day for exercise, that her pain while sitting was 0 out of 10, and that her pain while standing was a 7 to 8 out of 10 “which eventually gets down” to a 4 out of 10. (Id.) Dr. Hume advised Claimant to engage in aerobic exercise. (Id. at 110) In March 2020, Claimant reported that she had completed her physical therapy and was now able to “get around and perform [activities of daily living].” (Doc. 20-13 at 103) On physical examination, Dr. Hume noted that Claimant exhibited normal gait and station, range of motion, stability, and muscle strength/tone. (Id. at 105) Dr. Hume performed OMT and recommended Claimant continue application of heat, perform stretching exercises, and take a muscle relaxant as needed. (Id. at 106)

5. Center for Complex Neurology / Honor Health PNA

Claimant presented for a new patient evaluation in August 2018 for Ehlers-Danlos syndrome, headaches, and neck pain. (Doc. 20-11 at 80-84) Claimant reported that prior to summer of 2018, she would have 2 to 4 migraines a month, but that in August 2018 she suffered several per week. (Id. at 80) Claimant reported that Relpax helped her migraine symptoms but that she could only use 4 doses each month. (Id.) Claimant explained that she had recently been prescribed Fioricet but it did not help. (Id.) Claimant further detailed that she had taken: Topomax but it had unacceptable cognitive side effects; Depakote, which made her feel “out of it”; and Gabapentin, which she felt was too sedating. (Id.) Claimant stated that she had received occipital nerve blocks and trigger point injections at the Mayo Clinic that were not effective, and that facet joint injections had been effective, but she was reluctant to undergo further radiation exposure associated with the procedure for such injections given her history of thyroid cancer. (Id.) Dr. Saperstein diagnosed Claimant with Ehlers-Danlos syndrome and prescribed an upright MRI of the cervical spine with flexion and extension views as well as Botox injections. (Id. at 84)

Claimant received Botox injections in September 2018 with the plan to continue injections every 3 months. (Id. at 79) In October 2018, Claimant reported that the injections helped her migraines but aggravated her neck spasms. (Id. at 78) Dr. Saperstein had no explanation of why Botox injections would increase neck spasms. (Id.) He referred Claimant for physical therapy to address neck pain. (Id.) When Claimant received her second round of Botox injections in December 2018, she described a greater than 50% reduction in frequency and severity of her migraines and also said the headaches were shorter. (Id. at 60) Claimant noted the same status when she presented in March 2019 for her third round of injections. (Id. at 123) When Claimant underwent her fourth round of Botox injections in June 2019, she stated that she had been using “less abortive meds.” (Doc. 20-12 at 26)

In April 2019, Claimant recalled that she had gone from 16 headaches a month prior to receiving Botox treatments to 8 headaches a month after receiving such treatment. (Doc. 20-11 at 135) After Claimant received injections of Ajovy, a migraine preventative medication, in March 2019 (Id. at 125), she experienced 10 headaches in a month, followed by no headaches the following month. (Id.) In October 2019, Claimant complained of nightmares and insomnia after taking Ajovy. (Doc. 20-13 at 41) The provider noted that Ajovy was helping Claimant's headaches markedly but that her insurance required her to change to taking Emgality, a different migraine preventing medication. (Id. at 42) During a follow up appointment in February 2020, Claimant reported she suffered about 4 migraine headaches per month but that they were not as bad, and that Relpax worked to relieve the symptoms. (Id. at 86)

6. Mayo Clinic

Beginning in 2017, Claimant engaged in consultative appointments with specialists at the Mayo Clinic regarding her symptoms of spinal pain. On March 30, 2017, Dr. Larry Bergstrom conducted a comprehensive history and physical exam of Claimant. (Doc. 20-9 at 105-109) Claimant was self-referred for “multiple medical issues.” (Id. at 105) Dr. Bergstrom recorded that Claimant was “aware of musculoskeletal aching and stiffness when she first wakes in the morning and has to do some stretching. She is usually limbered up within 30 to 60 minutes.” (Id. at 106) Claimant told the doctor she was tired much of the time but that sleeping was restorative. (Id.) Claimant reported that she exercised regularly and suffered migraine headaches that were helped by taking magnesium. (Id.) Dr. Bergstom advised Claimant that Ehlers-Danlos made her prone to diffuse musculoskeletal pain. (Id. at 108) He also concluded that Claimant had “enough trigger points for the diagnosis of fibromyalgia.” (Id.) Dr. Bergstrom noted that Claimant and her husband had transitioned well into retirement” and had “found plenty of things to do to keep their life enjoyable.” (Id. at 109) The doctor encouraged Claimant to continue walking an average of 30 minutes daily. (Id.)

On May 18, 2017, Steven Ressler, M.D., consulted with Claimant. (Id. at 116-118) Dr. Ressler discussed the results of blood screening and x-rays of Claimant's cervical and lumbar spine. (Id. at 116) The doctor noted that Claimant's cervical spine displayed “some mild facet changes but nothing unusual for age” and that there was “degenerative disk narrowing at ¶ 4-4 and L5-S1 but no compression fracture.” (Id.) Doctor Ressler observed that Claimant had “chronic muscle tension, particularly in the neck as well as more diffuse myofascial pains.” (Id.) Claimant had reported that her thyroid cancer had interrupted her exercise and had been going to the gym more regularly before her cancer diagnosis and treatment. (Id.) Doctor Ressler recommended that Claimant follow a structured physical therapy program, a pain clinic consultation including consideration of other injection options, and a gentle exercise program. (Id. at 117)

Also on May 18, 2017, Claimant consulted with Dr. Ibrahim Aksoy about her chronic neck pain and low back pain. (Id. at 123-126) Claimant advised Dr. Aksoy that cervical facet injections had provided good relief in the past. (Id. at 123) Claimant told the doctor that she likes to bike and that she and her husband spend their summers in Pinetop, Arizona. (Id. at 124) On physical examination, Dr. Aksoy observed that Claimant's range of motion was normal in her cervical spine and her upper and lower limbs with a slight hyperextension in her elbows and possible mild joint hypermobility. (Id. at 125) Claimant asked for a referral to Mayo's pain clinic for an occipital nerve block, which Dr. Aksoy provided. (Id. at 126) Because Dr. Aksoy determined that Claimant presented with suboptimal posture and core weakness, he recommended physical therapy to help with both neck and low back pain. (Id.)

In June 2017, Claimant consulted with Thomas Nelson, P.A.-C., about her chronic neck pain and occipital nerve blocks. (Id. at 119-122) Nelson noted that Claimant's cervical spine x-rays indicated “a fairly normal cervical spine show[ing] mild disc bulges at ¶ 3-C4 and C5-C6.” (Id. at 119) Claimant was administered steroid injections “at the base of the occiput over her lateral cervical paraspinals as well as in her bilateral trapezii.” (Id. at 121)

In October 2019, after Claimant's date last insured, Claimant was seen at the Mayo Clinic on two occasions for right hip pain. (Doc. 20-13 at 4-5, 14-15) Dr. Kostas Economopoulos assessed Claimant with right hip gluteal tendinopathy. (Id. at 15, 44) The treatment plan included placing Claimant on an oral steroid along with platelet-rich plasma (“PRP”) injections of the gluteal tendons. (Id.) In November 2019, Claimant was seen by Dr. Bryan Gartner who diagnosed her with myofascial pain, right gluteus minimus tendinosis, a superior labral tear, and lumbar spondylosis. (Id. at 45) Dr. Gartner reported that Claimant expressed interest in PRP injections but declined to proceed with them until she is able to better control her migraine headaches. (Id.) The doctor's notes suggest that there were insurance coverage and cost of PRP injection considerations given the experimental nature of the injections. (Id.)

On December 10, 2019, Claimant underwent an outpatient right hip percutaneous tenotomy by Dr. Charles Peterson to address right hip gluteus medius tendinopathy. (Id. at 47-48)

7. The Orthopedic Clinic Association

In December 2013, Claimant was referred to this practice by her primary care physician for evaluation of her right hip. (Doc. 20-13 at 6-13) Claimant reported hip pain for the previous month. (Id. at 6) Claimant had previously had an injection into the greater trochanter area that she said helped in the past. (Id.) The doctor diagnosed right greater trochanteric bursitis. (Id. at 7) The doctor reviewed x-rays indicating mild osteoarthritis, no osteophytes, and no cystic changes in the femoral neck or acetabular rim. (Id. at 10) The doctor recommended treating Claimant with anti-inflammatories and stretching and a greater trochanteric bursa injection. (Id. at 7)

In January 2014, Claimant reported a 50% decrease in pain after receiving an injection in her greater trochanter. (Id. at 11) Claimant complained of pain on the lateral aspect of her hip that radiated down her thigh, and some pain in her buttocks area. (Id.) The doctor and Claimant agreed to a plan under which Claimant would take anti-inflammatories for pain control and if her pain was not better in four weeks, an MRI would be performed of her right hip to evaluate for possible gluteus medius tears. (Id.) Claimant stated that she did not wish to proceed with physical therapy. (Id.) The record does not show that Claimant returned to this practice. As discussed above in Section I(B)(6), after her date last insured Claimant was seen at the Mayo Clinic by Dr. Economopoulos, at which time he diagnosed right hip gluteal tendinopathy. (Doc. 20-13 at 15, 44)

8. Endocrinology, Diabetes & Longevity Center of Arizona Valley ENT, P.C.

The record shows these practices provided care for Claimant between April 2016 and October 2017 associated with the treatment of Claimant's thyroid cancer, including thyroidectomy and subsequent radiation. (Doc. 20-9 at 74-101, 136-202) In May, June and December 2018 and February 2020, Claimant presented for follow up appointments without any sign of recurrence of cancer. (Doc. 20-10 at 183-186, Doc. 20-11 at 24-37, Doc. 20-12 at 86-93, Doc. 20-13 at 88-92)

9. OrthoArizona Arcadia

Claimant was seen by this practice in April 2018 for right thumb pain. (Doc. 20-9 at 204-207) In July 2018, E. Scott Frankel, M.D., performed a repeat steroid injection to Claimant's right thumb carpometacarpal joint, which was producing pain that was aggravated with pinching and gripping. (Doc. 20-10 at 200-201)

10. Summit Healthcare Medical Associates, Show Low, Arizona

In June 2018, Claimant presented for neck pain and headaches. (Doc. 20-10 at 196) Claimant explained that she had been taking Flexeril and her migraine medications without much relief. (Id.) Claimant rated her headache pain at 7 out of 10 and complained that her headaches were ruining her vacation. (Id.) She advised the provider that she had an appointment with her osteopath in 12 days and requested something to get her through until that appointment. (Id.) A nurse practitioner prescribed Fioricet, with the proviso that they were unsure how helpful it would be for headaches related to neck pain. (Id. at 197)

11. Desert Institute for Spine Care

On January 1, 2019, after Claimant's date last insured, Claimant presented with neck pain and headaches “since spring 2018.” (Doc. 20-11 at 41-45) On physical examination, Dr. Christopher Yeung noted no restriction in Claimant's cervical range of motion with flexion, extension, lateral bending, or lateral rotation. (Id. at 43) The doctor also measured full strength bilaterally in Claimant's shoulder abduction, elbow flexion and extension, wrist extension and flexion, and interossei. (Id. at 43-44) Dr. Yeung concluded that Claimant's “x-rays and MRI appear satisfactory without any evidence of disc herniations or high-grade stenosis or any other sign of trauma.” (Id. at 44) Dr. Yeung stated that Claimant had “some right [neuroforaminal] stenosis at ¶ 3-4 but I do not think she needs intervention for this.” (Id.) Dr. Yeung recommended conservative care to minimize Claimant's symptoms, including the use of NSAIDS and other over-the-counter pain medications.” (Id.) He further suggested use of a cervical pillow, activity modification, massage, acupuncture, chiropractics, and epidural steroid injections if her pain worsened. (Id.) Dr. Yeung documented he would prescribe for Claimant a “gammacore vagus nerve E-stim unit” for migraine headache relief. (Id.)

12. Carlton Ritchie, D.O.

Claimant saw Dr. Ritchie between May and August 2020, requesting OMT for her neck and lumbar spine. (Doc. 20-14 at 5-9, Doc. 20-3 at 89-95) Dr. Ritchie performed OMT on Claimant's neck on May 1, 2020, and on her neck, lumbar spine, and ribs during on May 5, 2020. (Doc. 20-14 at 6, 8-9) In July 2020, Dr. Ritchie performed OMT on Claimant's neck for pain and prescribed medication for Claimant's right ear problems. (Doc. 20-3 at 93) In August 2020, the doctor discussed Claimant's symptoms of dizziness and a possible vestibular component to her migraine headaches. (Id. at 91)

13. Dr. Bill Dafnis, Family Medicine

Dr. Dafnis saw Claimant in June 2015 for complaints of fatigue and ongoing joint pain for the prior year. (Doc. 20-8 at 112-113) The doctor ordered blood tests and mentioned a potential rheumatology referral. (Id. at 113)

14. Sunrise Medical Center Glendale

Claimant was seen at this practice for allergy and immunology treatment between March 2014 and March 2020. (Doc. 20-13 at 16-40; Doc. 20-14 at 2-4)

15. Arizona Arthritis & Rheumatology Associates

On referral from Dr. Dafnis, Claimant was first seen by this practice in July 2015. (Doc. 20-8 at 126) In September 2015, it was noted that Claimant reported pain in her ankles and feet without swelling, and that there was no tenderness or decreased range of motion in her cervical spine, and no tenderness in her thoracic or lumbar spine. (Id. at 132133)

Claimant returned for evaluation and consultation over three years later in February 2019 because her joint pain had gradually worsened, affecting her right thumb, neck, and right knee. (Doc. 20-11 at 114)

16. Biltmore Cardiology

Claimant was treated by this practice in March and April 2018 for episodes of dyspnea on exertion and shortness of breath. (Doc. 20-10 at 113-127) Dr. Akil Loli ordered testing and medication. (Id. at 115) Claimant was diagnosed with preserved left ventricle systolic function and aortic sclerosis with mild regurgitation. (Id. at 125) In April 2019, Dr. Loli adjusted Claimant's medication and recommend she schedule a return office visit in a year. (Doc. 20-12 at 49)

17. Essential Family Health & Wellness

In January 2016, Claimant presented at this practice complaining of fatigue. (Doc. 20-9 at 66-68) In May 2016, Claimant reported feeling slowly better and the provider discussed altering Claimant's dhea prescription. (Id. at 65) When Claimant saw this provider in December 2016, she complained of back pain that made her feel very stiff and had worsened starting the previous month. (Id. at 60) The provider ordered an MRI of Claimant's lower back. (Id. at 62)

In April 2019, Claimant presented to discuss refill of medications. (Doc. 20-13 at 78) The provider addressed the possibility of sleep apnea. (Id. at 80) In February 2020, Claimant again presented for a follow up visit and medications check. (Id. at 82-84) Claimant reported ongoing right hip pain. (Id. at 82)

18. Arizona Wellness Center for Women

The record details that between June 2009 and February 2018, Claimant was treated by this practice for women's health issues including gynecological health, breast health, bone density, and menopause related issues. (Doc. 20-10 at 3-69)

19. Physical therapy

1. Honor Health - Shea Medical Center

Dr. Saperstein referred Claimant for physical therapy to address neck pain. (Doc. 20-11 at 78) Claimant saw physical therapist Barbara Debi for 20 sessions between October 24, 2018, and March 11, 2019. (Id. at 47-73, 126-128) After the 20 sessions, Ms. Debi placed Claimant's physical therapy on hold “due to minimal reported improvement with therapy.” (Id. at 127) Claimant reported no change after physical therapy in either her cervical pain or in the frequency/intensity of her migraine headaches. (Id.)

2. ProSports performance and rehab

After undergoing a right hip percutaneous tenotomy in December 2019, Claimant presented for a physical therapy evaluation on January 15, 2020 and obtained physical therapy until March 3, 2020. (Doc. 20-13 at 94-102) The goals for therapy included being able to perform sit to stand transfers with neither pain nor difficulty, return to the ability to sit unlimited in the car without gluteal pain, and return to the ability to walk on uneven terrain without pain and with good stability. (Id. at 95) Claimant reported improvement in gluteal pain after therapy but continued to complain of pain and difficulty with sit to stand transfers and with stairs. (Id. at 94)

C. Spine RFC Questionnaire by Anthony Will, D.O.

Dr. Will, who treated Claimant at the Midwestern University Multispecialty Clinic, completed a Spine RFC Questionnaire regarding Claimant's spine impairments on November 7, 2019. (Doc. 20-14 at 10-13) Dr. Will stated he had seen Claimant since 2014, quarterly on average. (Id. at 10) The doctor described Claimant's diagnoses as “diffuse cervical and lumbar osteoarthritis [with] degenerative disc disease, migraine cephalgia.” (Id.) Dr. Will reported that Claimant had undergone magnetic resonance imaging (“MRI”) of the cervical spine in 2006, 2009, 2014, 2017, and 2018, and of the lumbar spine in 2010, 2016, and 2017. (Id.) Dr. Will stated that Claimant's prognosis was “poor.” The doctor listed Claimant's symptoms as “chronic daily cervical & lumbar pain [with] fatigue, insomnia, immobility [and] decreased range of motion.” (Id.) Dr. Will described Claimant's spinal pain as “moderate to severe, radiation to shoulders and legs, chronic daily, worse [with] activity [and] improved with rest.” (Id.) The doctor listed positive objective signs of Claimant's spinal impairments as reduced range of motion, swelling, muscle spasm, tenderness, and crepitus. (Id. at 11) Dr. Will stated that “occasionally, ” or 6% to 33% of an 8-hour workday, Claimant's pain and other symptoms would be “severe enough to interfere with attention and concentration needed to perform even simple work tasks.” (Id.) As side effects of Claimant's medication, Dr. Will listed dizziness associated with muscle relaxers. (Id.)

Dr. Will estimated that Claimant could: sit for 20 minutes at one time before needing to get up; stand for 15 minutes at one time before needing to sit down or walk around; sit or stand and walk for less than 2 hours in an 8-hour work day; frequently lift and carry less than 10 pounds; occasionally lift and carry 10 pounds; never carry 20 pounds; rarely stoop or bend or crouch or squat; and occasionally twist, climb ladders, or climb stairs. (Id. at 1113) Additionally, Dr. Will opined that Claimant would need to get up every 20 minutes and walk around for 5 minutes and would require numerous unscheduled 5-minute breaks throughout an 8-hour working day. (Id. at 12) Dr. Will declared that Claimant could use her right hand for grasping, turning, or twisting objects 0% of an 8-hour workday; use the fingers of her right hand for fine manipulations 50% of the workday; and use her right arm for 50% of the workday for reaching, including overhead reaching. (Id. at 13)

D. State Agency Evaluations

1. Yosef Schwartz, M.D.

During the initial state agency determination in July 2018, non-examining consultative reviewer Yosef Schwartz, M.D., reviewed Claimant's medical records provided as of July 11, 2018. (Doc. 20-4 at 2-25) Dr. Schwartz concluded that based on a record review, “[a]lthough [C]lamaint's allegations are generally credible, the symptoms and objective evidence do not rise to the level of consideration of disabling, according to SSA standards.” (Id. at 21) Dr. Schwartz proposed an RFC for Claimant with the following exertional and postural limitations: stand and/or walk for about 6 hours of an 8-hour workday; sit for more than 6 hours on a sustained basis during an 8-hour workday; occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; occasional climbing of ladders, ropes, or scaffolds; and frequent stooping, kneeling, crouching, or crawling. (Id. at 21-22) Additionally, Dr. Schwartz suggested environmental limitations, including avoiding concentrated exposure to extreme cold, humidity, and hazards such as heights and machinery. (Id. at 22) Dr. Schwartz concluded that although Claimant was limited in some aspects of her ability to perform work-related activities, such limitations would not prevent her from performing work as a school nurse “as normally performed in the national economy.” (Id. at 24-25)

2. R. Titanji, M.D.

During the state agency's reconsideration review in April 2019, Dr. R. Titanji reviewed Claimant's medical records current as of March 2019. (Doc. 20-4 at 26-52) Dr. Titanji agreed with the initial RFC for light work as recommended in the initial review by Dr. Schwartz, but recognized only an environmental limitation to hazards. (Id. at 45, 4849) On reconsideration, the reviewers again concluded that Claimant maintained the RFC to perform her past relevant work as a school nurse as generally performed in the national economy. (Id. at 50)

II. STANDARD OF REVIEW

An ALJ's factual findings “shall be conclusive if supported by substantial evidence.” Biestek v. Berryhill, U.S., 139 S.Ct. 1148, 1153 (2019) (citing 42 U.S.C. § 405(g)). The Court must affirm the Commissioner's decision to adopt the ALJ's findings if his findings are supported by substantial evidence and are free from reversible error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla, but less than a preponderance.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). “It means and means only ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek, 139 S.Ct. at 1154 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The court reviews “only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

In determining whether substantial evidence supports the ALJ's decision, the reviewing court looks to an existing administrative record and asks whether it contains ‘“sufficien[t] evidence' to support the agency's factual determinations.” Biestek, 139 S.Ct. at 1154 (quoting Consolidated Edison Co., 305 U.S. at 229). The ALJ is responsible for resolving conflicts in medical testimony, ambiguity in the record, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). If there is sufficient evidence to support the ALJ's outcome, the Court cannot substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). Although the Court “must do more than merely rubberstamp the ALJ's decision[, ]” Winans v. Bowen, 853 F.2d 643, 645 (9th Cir. 1988), where the evidence “is susceptible to more than one rational interpretation, it is the [Commissioner's] conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

III. LEGAL STANDARDS

Claimant bears the burden of proving disability under the Social Security Act. Tidwell, 161 F.3d at 601. She meets this burden if she can establish that she has a physical or mental impairment that prevents her from engaging in any substantial gainful activity and which is expected to result in death or to last for a continuous period of at least one year. 42 U.S.C. § 423(d)(1). Claimant's impairments must be such that she is not only unable to perform her past relevant work, but she cannot, considering her age, education and work experience, engage in other substantial gainful work existing in the national economy. Id. at § 423(d)(2).

The Commissioner applies a five-step sequential process to evaluate disability. 20 C.F.R. § 404.1520(a). In the first three steps, a claimant must show: (1) she is not currently working; (2) she has a “severe” impairment or a combination of impairments that is “severe”; and (3) the severity of her impairment(s) meets or equals the severity of a listed impairment in the Listing of Impairments (20 C.F.R. Pt. 404, Subpt. P, App. 1), and meets a duration requirement. Id. at § 404.1520(a)(4)(i)-(iii). If a claimant qualifies for disability under these three steps, she will automatically be found disabled and the process ends; if the claimant satisfies steps one and two but not three, she must then satisfy step four. Id.; Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

At step four, the ALJ determines the claimant's RFC and decides whether the claimant is still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). As part of the fourth step, the ALJ must assess the claimant's residual functional capacity (“RFC”), see id., which is “the most [the claimant] can still do despite [the claimant's] limitations.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1097 (9th Cir. 2014) (quoting 20 C.F.R. § 404.1545(a)(1)). The RFC assessment is “based on all the relevant medical and other evidence” in the claimant's record. Id. (quoting 20 C.F.R. § 404.1520(e)). In determining a claimant's RFC, the ALJ must consider all of a claimant's medically determinable impairments, including those that are not severe. 20 C.F.R. § 404.1545(a)(2). If it is determined at step four a claimant can perform her past relevant work, she is found to be not disabled. 20 C.F.R. § 404.1520(a)(4)(iv).

If the claimant shows she is unable to perform her past relevant work at step four, the burden shifts from her to the Commissioner to establish the claimant is able to make an adjustment to perform other work in the national economy, considering the ALJ's assessment of the claimant's RFC and age, education and work experience. 20 C.F.R. § 404.1520(a)(4)(v); Tackett, 180 F.3d at 1098 (claimant bears the burden of proof on the first four steps, but the burden shifts to the Commissioner at step five).

IV. THE ADMINISTRATIVE HEARING

The ALJ conducted a hearing on Claimant's application on June 2, 2020. (Doc. 203 at 38-88) ALJ Gaughen confirmed with Claimant and her counsel that Claimant's date last insured was September 30, 2019. (Id. at 46) Claimant's counsel asserted that Claimant suffered from a number of medically determinable severe impairments, specifically: degenerative disc disease at several levels of the spine, particularly the neck, which associated with Claimant's migraine headaches; hip deformity; a diagnosis of hypermobile Ehlers-Danlos syndrome affecting Claimant's joint injuries to her hip, thumb, and spine; osteoarthritis affecting several joints, particularly her hip; thyroidectomy to treat papillary thyroid cancer resulting in hypothyroidism; extreme fatigue and chronic fatigue. (Id. at 5051) Claimant's counsel advised the ALJ that Claimant's symptoms of Meniere's disease, Lyme's disease, and rheumatoid arthritis were dormant at that time and her thyroid cancer was in remission after removal of her thyroid gland. (Id. at 51)

Claimant testified that she suffered three to four migraine headaches a month, even while on “maximum therapy.” (Doc. 20-3 at 53) She testified that she needed to use heat on her neck, hip, and back intermittently throughout the day, could not sit for more than 20 minutes without her joints feeling stiff, prepared simple meals that required very little clean up, and had a doctor's appointment at least once a week. (Id. at 54-55) Claimant said her migraines and abortive migraine medicine prevented her from working because she became tired and sleepy and could not concentrate. (Id. at 57) Claimant stated that she had suffered from back pain for years, which made it hard to lift, stand in one place “for too long, ” sit too long, or bend repeatedly. (Id. at 58) She said she was only recently diagnosed with Ehlers-Danlos syndrome but explained that this condition likely was directly related to her joint pain. (Id. at 59) Claimant reported that her thyroid medication caused consistent fatigue. (Id.) Regarding her hip pain, Claimant explained that she had suffered hip pain for many years but that she declined her doctor's recommendation for surgery in about 2013 or 2014 because it would require a lengthy recovery. (Id. at 60) She said that she had recently reinjured her hip, resulting in great pain during walking and sitting too long. (Id.) Claimant declared that she would soon be talking to her doctor about treatment options, which could require hip replacement or labile tear repair that required a nine-month recovery. (Id.) Claimant explained she had undergone numerous steroid facet injections to her neck over many years with decreasing effectiveness and that she could not have additional injections because of her thyroid cancer. (Id. at 61) Claimant disclosed that osteopathic manipulation helped with her neck and back pain. (Id.) She said that taking a muscle relaxant helped with pain but remarked that she only took this when she absolutely had to, owing to the effects on her joints of the Ehlers-Danlos syndrome. (Id. at 62)

Claimant explained that she took medications for migraine prevention, migraine treatment, suppression of Meniere's disease, thyroid replacement, inflammation, estrogen replacement, autoimmune control, and osteoporosis. (Id. at 63) Claimant testified she suffered major side effects from her medications, including fatigue and sleepiness, reduced concentration, and gastrointestinal distress. (Id. at 64)

Claimant explained that she had to retire in 2012 from her full-time job due to her inability to work and also go to her medical appointments, and then returned to work parttime in October 2013 for 13 hours per week, but only stayed until May 2014 because she said she still couldn't attend her doctor's appointments and she was unable to lift students due to back pain. (Id. at 66-67) Claimant reported that she regularly wore knee braces, ankle braces, and a thumb brace. (Id. at 67)

Claimant said that she could walk for 30 minutes on days when she did not suffer a migraine headache, but then needed to sit in a recliner for 30 to 60 minutes to restore her energy, although she said she could only sit in the recliner for 20 minutes at a time. (Id. at 68) Claimant reported that she could only sit in a regular desk chair for 15 minutes at a time and then would need to stand and walk for 5 minutes. (Id. at 69) She stated that she could only stand in one place for 15 to 20 minutes before she had to take a seat. (Id.)

Claimant asserted that after either a migraine headache or taking her abortive migraine medication, she could not think as quickly as was normal. (Id. at 79) Claimant said her medications prevented her from concentrating and that she could only be on task for 20 minutes on a bad day. (Id. at 72) Claimant estimated she could lift up to 5 pounds frequently with her right arm and hand, and perhaps a bit more with her left arm and hand. (Id. at 74) She said that she could bend, but not repeatedly, and stoop only a couple of times a day. (Id. at 74)

Claimant stated that “[a]t some point I probably need a hip replacement, that's something I want to put off as long as possible, at 62 I need my hip replacement when I get it to last probably the rest of my life.” (Id. at 75) She also explained that it would take her longer to heal and recover after surgery because of her Ehlers-Danlos disease. (Id.) Claimant stated that she had from one to three doctor's appointments per month, depending on the month. (Id. at 76) Claimant said that her medical limitations had been about the same since November 2012. (Id. at 77)

V. THE ALJ's DECISION

The ALJ issued his unfavorable decision on July 20, 2020. (Doc. 20-3 at 20-29) He concluded that Claimant did not qualify as disabled within the meaning of the Social Security Act from May 30, [2014], through Claimant's date last insured of September 30, 2019. (Id. at 20-21)

Applying the five-step sequential evaluation process, the ALJ concluded that Claimant had not engaged in substantial gainful activity from her amended alleged onset through her date last insured. (Id. at 22) The ALJ stated that through the date last insured, Claimant suffered from the severe impairments of a history of thyroid cancer in remission, status post thyroidectomy, migraine headaches, arthritis, and severe musculoskeletal impairments of her right hip and cervical spine with facet arthropathy. (Id. at 22-23)

The ALJ noted that Claimant had been diagnosed with or treated in the past for symptoms of fibromyalgia, Meniere's disease, and Ehlers-Danlos syndrome, and that the record mentioned as possible diagnoses Lyme's disease, Hashimoto's thyroiditis, diverticulosis without diverticulitis, Raynaud's phenomenon, unspecified heart palpitations, hypothyroidism, history of bladder repair and unspecified cardiovascular pain. (Id. at 23) For these conditions, the ALJ concluded that none qualified as severe under the regulations. (Id.)

The ALJ further found that Claimant did not have an impairment or combination of impairments meeting or medically equaling the severity of a listed impairment as defined in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 24)

The ALJ concluded that through Claimant's date last insured of September 30, 2019, she retained the RFC to perform:

[l]ight work as defined in 20 CFR 404.1567(b) subject to the following[:][s]he could lift and carry up to 20 lbs occasionally, and 10 lbs frequently; she could work on her feet up to 30-minutes at one time, and stand at a work station up to 2-hours at one time; she can frequently stoop and kneel, and occasionally crouch or crawl; she could have occasional exposure to extreme cold, excessive noise, use of hazardous machinery, and exposure to unprotected heights; she could not keep up with strict production quotas measured on a per shift rather than per hour basis.

(Id. at 17)

The ALJ stated that while the medical evidence supported the conclusion that Claimant's impairments “could reasonably be expected to cause the alleged symptoms[, ]” Claimant's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record[.]” (Id. at 25) The ALJ concluded that although the record indicated that Claimant's impairments “could be expected to cause ongoing, work-related functional limitations during the period under review, ” these limitations were “less than totally disabling in severity, and less debilitating that [Claimant] has alleged.” (Id.)

The ALJ stated that the persuasiveness of Claimant's self-reported symptoms was lessened due to “inconsistencies and other facts present in the evidence[.]” (Id.) The ALJ stated that some of the medical conditions asserted by Claimant as being disabling or resulting in significant impairment were “only minimally supported” by the record. (Id.) The ALJ declared that the medical record established minimal symptoms caused by Claimant's diagnosis of Meniere's disease, Ehlers-Danlos syndrome, and the other conditions listed above that the ALJ considered to be non-severe. (Id. at 25-26) Regarding Claimant's reports of debilitating chronic symptoms of fatigue and pain, the ALJ stated that the longitudinal medical records indicated Claimant presented in no acute distress and that her gait, station, strength, sensation, and range of motion were generally normal. (Id. at 26) With respect to Claimant's severe musculoskeletal impairments, the ALJ concluded that worsening of her condition was documented after her date last insured, and that prior to her date last insured Claimant was “consistently observed with normal gait and station, and no evidence of muscle atrophy, wasting, or weakness, which would support her purported limitations in standing or walking[]” and she had “endorsed 50 to 80 percent pain improvement following injections of her spine, and her right hip.” (Id.)

The ALJ further stated that the medical record did not support Claimant's claims of debilitating migraine headaches because Claimant's treatment records indicated her symptoms were managed with medication which avoided incapacitation for extended periods. (Id. at 26-27) Addressing Claimant's thyroid cancer, the ALJ indicated the record established that in 2017, Claimant's cancer had resolved within 12 months of initial treatment and that follow up appointments in 2018, 2019, and 2020 confirmed that Claimant was cancer free. (Id. at 27) The ALJ thus found that Claimant's history of thyroid cancer did not support a finding of disability. (Id.)

The ALJ also found that the November 2019 medical source statement from Anthony Will, D.O., that Claimant's musculoskeletal impairments would prevent her from engaging in the full range of sedentary work during the relevant period was inconsistent with the medical record. (Id.) In contrast, the ALJ concluded that the RFC assessments provided by the non-examining state agency reviewing medical consultants, Drs. Schwartz and Titanji, were consistent with Claimant's medical records during the relevant period. (Id. at 27-28)

The ALJ concluded that Claimant had been capable during the relevant period to perform her past relevant work as an elementary school nurse as generally performed nationwide at the light level, rather than at the light to medium level at which Claimant had performed the job before she retired. (Id. at 28-29) Accordingly, the ALJ held that Claimant had not been under a disability as defined in the Social Security Act from her alleged onset date of May 30, 2014², through the date last insured of September 30, 2019. (Id.)

2 The ALJ mistakenly referred to the alleged onset date as May 30, 2012, rather than to the amended alleged onset date of May 30, 2014.

VI. DISCUSSION

Claimant generally argues the ALJ erred in his assessments of Claimant's credibility and the severity of Claimant's conditions and limitations, and also erred in his determination of Claimant's RFC. (Doc. 23 at 2) More specifically, Claimant contends the ALJ erred: (1) in his assessments of Claimant's credibility and of the record because they were not supported by substantial evidence; (2) by substituting his own opinion for the findings and opinions of medical sources; (3) when he dismissed evidence because it was dated beyond Claimant's date last insured; and (4) by making a credibility finding without accounting for Claimant's activities of daily living or her complaints of fatigue. (Id.) Regarding the ALJ's determination of Claimant's RFC, Claimant asserts the ALJ erred: (1) by failing to account for Claimant's activities of daily living and medication side effects; (2) by relying on non-examining medical opinions; (3) by not considering the duties of Claimant's past relevant job; and (4) in finding that Claimant could perform her past relevant job, where the ALJ relied on a misreading of the VE's testimony. (Id.) Each argument is addressed in turn.

A. The ALJ's Assessment of Claimant's Credibility is Supported by the ALJ's Specific, Clear and Convincing Reasons and by Substantial Evidence

Claimant contends that the portions of the medical record the ALJ relied on to find that Claimant's self-reported symptoms were unpersuasive had been “cherry-picked” and were “misleading relative to the record as a whole” and also that the ALJ ignored evidence that was consistent with Claimant's testimony. (Doc. 23 at 9-10) Claimant notes that the ALJ relied on portions of the medical record in which the medical care providers documented Claimant's normal gait and station but argues that the ALJ erred by ignoring that within the same records, the care providers also reported hypertonicity, muscle tightness, muscle spasms, and sometimes multiple migraine episodes. (Doc. 23 at 10) Claimant further states that the ALJ ignored record evidence that in October 2019 Claimant was seen at the Mayo Clinic by Dr. Economopoulos for right hip pain, and that after reviewing diagnostic imaging, the doctor assessed Claimant with right hip gluteal tendinopathy and recommended a treatment plan which included placing Claimant on an oral steroid along with platelet-rich plasma (“PRP”) injections of the gluteal tendons. (Doc. 23 at 10-11 (citing Doc. 20-13 at 2-3, 14-15, 45, 47))

In evaluating a claimant's subjective pain or other symptom testimony, an ALJ must evaluate whether the claimant has presented objective medical evidence of an impairment “which could reasonably be expected to produce the pain or symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal citations omitted)). After the claimant produces objective medical evidence of an underlying impairment, “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.” Burch, 400 F.3d at 682. However, as noted, the ALJ may “reject the claimant's testimony about the severity of [the] symptoms” as long as the ALJ also explains his decision “by providing specific, clear, and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015).

In the ALJ's review of Claimant's symptom testimony, he cited to a number of specific medical records that documented Claimant's severe impairments, including degeneration of Claimant's cervical and lumbar spine and her right hip, and her history of migraine headaches. (Doc. 20-3 at 26-27) The ALJ acknowledged that Plaintiff had impairments that could “reasonably be expected to cause [her] alleged symptoms” (Id. at 25) and would require work-related functional limitations, which he accounted for in the RFC. (Id. at 24). However, the ALJ also determined that Claimant's statements addressing the persistence, intensity, and limiting effects of her symptoms were not fully consistent with the record. (Id. at 25)

More specifically, the ALJ contrasted Claimant's “complaints of chronic debilitating symptoms of pain and fatigue” from her severe and non-severe conditions with “the longitudinal physical examination records that “observed [Claimant] in no acute distress in her clinical presentation” and documented Claimant as presenting with “normal gait, station, strength, sensation, and range of motion in the extremities.” (Id. at 26 (citing Doc. 20-8 at 62, 74, 86; Doc. 20-10 at 115³, 142; Doc. 20-13 at 42, 44-45, 53, 57, 61, 65, 68, 72, 76, 83, 105, 109, 113⁴, 117⁵)) The dates of these record citations range between June 2014 and February 2020, and several were from reports subsequent to Claimant's date last insured of September 2019. (Id.) Significantly, the majority of these citations to the record are appointment summaries in which the physicians documented both symptoms of joint pain, muscle spasms, or muscle tightness and at the same time reported that Claimant displayed no distress and displayed normal gait and stability and often full range of motion, and/or full strength and normal muscle tone. (Doc. 20-10 at 141-142; Doc. 20-13 at 44-45, 52-53, 55-57, 59-61, 66-68, 70-72, 74-76, 103-105, 107-109)

3 The ALJ apparently mistakenly identified this reference as “Ex. 21F, p. 14” instead of “Ex. 21F, p. 4.”

4 The office visit report at Doc. 20-13 at 111-114 dated January 17, 2020, is a duplicate of that found at Doc. 20-13 at 74-77.

5 The office visit report at Doc. 20-13 at 115-117 dated January 2, 2020, is a duplicate of that found at Doc. 20-13 at 70-72.

Additionally, the ALJ noted that Claimant had obtained good relief from injections to her spine and her right hip. (Id. (citing the record listed by Dr. Schwartz at Doc. 20-4 at 17)) Moreover, the ALJ stated that the most recent neurology statements in the record documented that Claimant was experiencing approximately four migraine headaches per month and that Relpax was effective in addressing the symptoms of those headaches. (Id. (citing Doc. 20-13 at 86))

Although Claimant contends that the ALJ erred by “cherry-picking” specific areas of improvement in the treatment record (Doc. 23 at 8-9), the record refutes this characterization. As noted, the ALJ cited evidence of Claimant's providers' observations of no distress and Claimant's normal gait and stability and often full range of motion, and/or full strength and normal muscle tone in nearly all of the same appointment summaries in which Claimant complained of joint pain, muscle spasms, or tightness. (Doc. 20-10 at 141-142; Doc. 20-13 at 44-45, 52-53, 55-57, 59-61, 66-68, 70-72, 74-76, 103-105, 107-109) The record the ALJ relied on did not represent an “isolate[ed] . . . specific quantum of supporting evidence[, ]” Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989), but were findings documented by the same treatment providers that diagnosed the impairments the ALJ concluded could reasonably be expected to cause Claimant's alleged symptoms.

The ALJ's discussion of the longitudinal physical examination records is supported by substantial evidence in the medical record and entails specific, clear and convincing reasons for ALJ's adverse credibility finding. Regarding Claimant's complaints of neck pain, the ALJ discussed degenerative changes to Claimant's cervical spine that were diagnosed pursuant to an MRI performed in February 2006⁶ while Claimant was working full time, several years prior to her alleged onset date of disability. (Doc. 20-3 at 26) At that time, it was noted at 3-C4 there was a “right lateral disk protrusion that impinged on the exiting right C4 nerve root.” (Doc. 20-8 at 2) The ALJ stated that “subsequent MRI reports from the relevant period note the claimant's cervical spine as unchanged, with stable, mild to moderate right C3-C4 foraminal stenosis, and a stable tiny central disc protrusion at 5-C6.” (Doc. 20-3 at 26)

6 The ALJ stated that Claimant's cervical spine imaging first describing degenerative changes occurred in 2009, but the records he cited were actually dated in 2006. (Doc. 203 at 26, citing Doc. 20-8)

The ALJ's assessment of the history of Claimant's cervical spine imaging is supported by the record. An MRI of Claimant's cervical spine was performed in May 2014, the results of which were compared to a prior MRI of Claimant's cervical spine taken in April 2009, several years prior to Claimant's alleged onset date of disability. (Doc. 20-3 at 26, citing Doc. 20-8 at 93-94) The 2014 MRI results described essentially the same conditions that were previously observed in April 2009: at 3-C4 “a mild posterior discosteophyte complex effacing the ventral thecal sac without cord compression or central canal spinal stenosis” and “mild right-sided uncovertebral spurring and facet hypertrophy resulting in mild to moderate right-sided neural foraminal stenosis without central canal spinal stenosis”; and at 5-C6 “again noted is a tiny central disc protrusion mildly effacing the ventral thecal sac in the midline without central canal spinal stenosis or neural foraminal stenosis.” (Doc. 20-8 at 93) Similarly, an MRI of Claimant's cervical spine taken in October 2017 again identified at 3-C4 a “1.5mm broad-based disc protrusion [that] minimally indents the thecal sac without spinal canal or neural foraminal compromise” and at C5-C6, “a 1 mm disc protrusion [that] indents the ventral thecal sac without spinal canal or neural foraminal compromise.” (Doc. 20-10 at 178) An additional MRI of Claimant's cervical spine was performed in September 2018. (Id. at 213-214) The review of this imaging was compared to that conducted in October 2017 and documented stable results in the interim. (Id.)

Concerning Claimant's complaints of lower back pain, the ALJ observed that imaging over time had described “degenerative disc disease and facet arthropathy at ¶ 4-L5 and L5-S1, however, this condition was not described as advanced until after the date last insured.” (Doc. 20-3 at 26, citing Doc. 20-13 at 44-45) Regarding Claimant's hip pain, the ALJ noted that imaging demonstrating advanced degenerative changes did not occur until after Claimant's date last insured and that Claimant did not “seek surgical consultation, or undergo surgery of the right hip until months after the date last insured.” (Id., citing Doc. 20-13 at 59) The ALJ contrasted imaging indicating worsening of Claimant's lumbar spine and right hip conditions after her date last insured with medical providers' findings prior to her date last insured. (Id.) The ALJ noted that despite evidence of degenerative changes to her lumbar spine and hip, Claimant had been “consistently observed with normal gait and station, and no evidence of muscle atrophy, wasting, or weakness, which would support her purported limitations in standing or walking” and that before her date last insured, Claimant “endorsed 50 to 80 percent pain improvement following injections of her spine, and her right hip.” (Id. (citing non-examining Dr. Schwartz's summary of the medical record, Doc. 20-4 at 17))

The medical record substantiates the ALJ's statements. In November 2014, Claimant reported to her pain specialist Dr. Wang that her back was not bothering her much. (Doc. 20-10 at 129) In February 2017, Dr. Wang noted that he had not seen Claimant since 2014 while she had been addressing her thyroid cancer. (Id. at 149) In November 2017, Claimant reported 70% relief of lower back pain, and although she said she still had upper lumber pain, Dr. Wang observed that her range of motion and strength in all her extremities was within normal limits, and she demonstrated normal gait and station. (Id. at 141-142) In March 2018, Claimant reported to Dr. Will that her back pain was a 2 and 3 out of 10. (Id. at 84, 88) Dr. Will described Claimant's low back pain as mild to moderate and described Claimant's gait and station as normal. (Id. at 81, 83, 87) Dr. Will also reported Claimant's statement that she enjoyed “decreased pain and improvement in range of motion since [her] last office visit. (Id. at 81) In August 2018, Dr. Wang noted that Claimant's low back pain was mild. (Doc. 20-11 at 20) In November 2018, Dr. Will documented that Claimant had a history of chronic low back pain and reported Claimant's pain as mild to moderate. (Id. at 8)

In January 2019, Dr. Yeung at the Desert Institute for Spine Care saw Claimant for complaints of neck pain and observed that Claimant's gait was non-antalgic and that she was “able to heel-and-toe-walk normally.” (Id. at 43) After treating Claimant's lumbar spinal cord dura with OMT in February 2019, Dr. Chen reported that Claimant described 80% improvement in symptoms after one treatment and 99% improvement in symptoms after another treatment a week later. (Id. at 96, 99) In office visits by Claimant to Dr. Will between March and August 2019, Claimant complained of chronic low back pain and/or lumbar spasm and tightness, but Dr. Will consistently reported she demonstrated full strength and normal gait and station. (Doc. 20-12 at 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 29, 31) Dr. Will reported that OMT treatments resulted in improved range of motion and reduction in pain. (Id. at 4, 8, 12, 17, 21, 32) During this period, Dr. Will did not record Claimant's rating of her pain except in June and August 2019, when he documented that her pain was mild to moderate. (Id. at 18, 29) In July 2019, Dr. Chen reported that Claimant's back pain was constant and “isn't worse than it normally is” and that after OMT treatment Claimant reported 80% improvement in symptoms. (Id. at 33, 36) In October 2019, just after Claimant's date last insured, Dr. Will reported that Claimant complained of diffuse pain throughout her spine and in her pelvic region. (Doc. 20-13 at 59) The doctor nonetheless recorded Claimant's normal gait and station and full strength. (Id. at 61)

Dr. Will's report of Claimant's November 7, 2019, appointment was unique in several respects. (Id. at 63-65) In describing Claimant's history of present illnesses, Dr.

Will noted that Claimant suffered “from migraine headaches with multiple episodes keeping her from work.” (Id. at 63) The doctor also declared that Claimant had reported “moderate to severe pain with limitation in activities of daily living.” (Id.) This was the sole instance in the medical record prior to or after this date in which Dr. Will described Claimant's pain level as anything greater than mild to moderate. Dr. Will explained that the purpose of Claimant's visit was to “fill out disability paperwork.” (Id.) For the first and only time in any report in Claimant's medical record, Dr. Will also reported Claimant's gait and station as “abnormal.” (Id. at 65) The doctor also included a notation, again for the only time, that Claimant's “[i]nspection/palpitation of joints, bones, and muscles” was “abnormal.” (Id.)

When Dr. Will saw Claimant the next month, in December 2019, he observed that she was “stable and doing well” and had “responded favorably to osteopathic care.” (Id. at 66) The doctor stated that Claimant's gait and station were normal and that she displayed full strength. (Id. at 68) An office visit summary from January 2020 noted that Claimant presented with normal gait and station, normal musculoskeletal range of motion, and normal stability, and muscle strength. (Id. at 113) In February 2020, Claimant advised that she had no pain sitting and pain standing was 7 to 8 out of 10 that reduced eventually to 4 out of 10. (Id. at 107) Claimant reported that she walked every day for exercise. (Id.) In March 2020, Dr. David Hume, D.O., again noted that Claimant's gait and station, musculoskeletal range of motion, stability, and strength/tone were normal. (Doc. 20-13 at 105)

The record under review here is “susceptible to more than one rational interpretation, one of which supports the ALJ's decision[.]” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Accordingly, the ALJ's conclusion should be upheld. Id.; see also Batson v. Comm'r of Soc. Sec., 359 F.3d 1190, 1190 (9th Cir. 2004) (“the Commissioner's findings are upheld if supported by inferences reasonably drawn from the record.”). Further, the ALJ provided specific, clear, and convincing reasons for discounting Plaintiff's symptom testimony supported by substantial evidence. See Brown-Hunter, 806 F.3d at 488-89.

B. The ALJ Did Not Improperly Substitute His Opinion for Those of Medical Sources

Claimant asserts that the ALJ improperly substituted his lay opinion for the findings and opinions of medical sources when the ALJ described Claimant's migraines as not “intractable as [Claimant] has alleged” and by noting that diagnostic imaging had not revealed any “acute intracranial abnormality.” (Doc. 23 at 14 (citing Doc. 20-3 at 26)) Claimant contends that the ALJ stated that Claimant had characterized her migraines as intractable migraines, that is, migraines that “are intense and . . . stick around for longer than 72 hours” (Id. at 14 n.3), thus inserting his own opinion where the record reflects that Claimant's migraines were not this severe. (Id. at 14-15) Additionally, Claimant argues that the ALJ's comment that “[d]iagnostic imaging has not found [Claimant] with any acute intracranial abnormality during the relevant period” shows that the ALJ “essentially insert[ed] his own medical requirement that migraines must manifest as an ‘abnormality' on an image in order to be severe[.]” (Id. at 15 (citing Doc. 20-3 at 26)) Claimant concludes that by applying the absence of abnormal brain imaging as a reason for finding Claimant's migraines not disabling, the ALJ ignored Claimant's doctor's diagnosis that her migraines had a cervicogenic cause. (Id. at 15-16)

Undersigned disagrees with Claimant's reading of the ALJ's decision. The ALJ in fact observed that “[w]ith respect to [Claimant's] migraine impairment and cervicogenic headaches, this condition has been present, but has not been intractable as the claimant has alleged.” (Doc. 20-3 at 26) In the context of the ALJ's decision as a whole, the ALJ's discussion about Claimant's migraines is reasonably read not to imply that the ALJ believed that Claimant had asserted she had been clinically diagnosed with “intractable migraines, ” but rather that Claimant's migraine symptoms were not as hard to manage as she had alleged. Evidence for this conclusion is found earlier in the decision where the ALJ specifically noted that Claimant “indicated that she has chronic migraine headaches” and that Claimant had stated that her treatments for her impairments had “not been fully effective in controlling her impairments and symptoms.” (Id. at 25) In any event, the ALJ addressed evidence in the record that Claimant reported she was only experiencing four migraines a month and that medication was managing those migraine symptoms, which would support the ALJ's disability determination regardless of how Claimant's migraines were characterized.

The ALJ also stated that “[d]iagnostic imaging has not found [Claimant] with any acute intracranial abnormality during the relevant period.” (Id. at 26) It is plain that the ALJ understood that the record supported the conclusion that Claimant suffered headaches whose origin was cervicogenic and not intracranial, because the ALJ expressly stated this. (Id. (“[w]ith respect to [Claimant's] migraine impairment and cervicogenic headaches, this condition has been present[.]”)) Moreover, there is no contrary indication in the ALJ's decision that he did not accept Claimant's diagnosis of cervicogenic migraine headaches. It is unclear why the ALJ included the statement about the absence of any intracranial abnormality, although taken in context, it is a reasonable conclusion that the statement was intended merely to support the finding that Claimant's migraines were cervicogenic and not caused by any intracranial abnormality.

In essence, Claimant attempts to create error by the ALJ where the error does not exist. At the least, the evidence on which Claimant grounds this claim “is susceptible to more than one rational interpretation” and because one reasonable interpretation supports the ALJ's decision, the ALJ's conclusion should be upheld.

C. The ALJ Did Not Err by Dismissing Evidence Reported After Claimant's Date Last Insured

Claimant argues the ALJ erred as a matter of law by disregarding evidence in the medical record because it was dated after Claimant's date last insured. (Doc. 23 at 16-19) Claimant contends that because imaging evidence was obtained only about two weeks after her date last insured, the ALJ should have considered the imaging results “as objective extensions and corroboration of subjective complaints and other signs/symptoms diagnosed years earlier for the conditions that comprise [Claimant's] chief impairments.” (Id. at 18)

As Claimant asserts, the ALJ noted that imaging of Claimant's lumbar spine dated in October 2019 was reviewed as demonstrating “degenerative disc disease and facet arthropathy at ¶ 4-L5 and L5-S1.” (Doc. 20-3 at 26) The ALJ observed that this condition had not been described as “advanced” until after Claimant's date last insured. (Id.) The ALJ described imaging of Claimant's hip also performed in October 2019 as presenting mild and moderate conditions. (Id.) The ALJ stated that these conditions had not been observed on imaging before Claimant's date last insured and also declared that Claimant had not sought surgical consultation and did not undergo surgery to her right hip until some months after the date last insured. (Id.)

The ALJ, however, did not state that he was disregarding this imaging evidence. Instead, the reason the ALJ detailed for not finding the evidence dispositive on Claimant's disability was that “prior to the date last insured, the claimant has been consistently observed with normal gait and station, and no evidence of muscle atrophy, wasting, or weakness, which would support her purported limitations in standing or walking.” (Id.) As noted, this evidence is consistently documented in the record both before and after the date of the October 2019 MRIs. (See, e.g., Doc. 20-12 at 4, 8, 16, 31; Doc. 20-13 at 57, 61, 68, 72, 76) The ALJ further said that prior to the date last insured, Claimant had reported pain improvement following injections to her spine and right hip. (Doc. 20-3 at 27)

As noted, the ALJ's disability determination is supported by substantial evidence and that evidence includes record evidence indicating that that degenerative changes to Claimant's spine and right hip did not result in disabling limitations to Claimant's ability to stand and walk, or to her musculoskeletal range of motion. Claimant has failed to establish that the ALJ erred by disregarding evidence in the medical record because it was dated after Claimant's date last insured.

D. The ALJ Did Not Err in Making a Credibility Finding About Claimant's Symptom Testimony

Claimant contends that the ALJ erred by not considering Claimant's activities of daily living or her complaints of fatigue when making a credibility finding, in violation of 20 C.F.R. § 404.1529. (Doc. 23 at 19-20) Claimant alleges that the ALJ “ignored [Claimant's] extensive testimony of the fatigue caused by her medications.” (Id. at 20)

Title 20 C.F.R. § 404.1529 requires generally that in determining whether a claimant is disabled, an ALJ will consider all of a claimant's symptoms and “the extent to which [a claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(a). When assessing a claimant's symptoms, an ALJ may consider factors relevant to such symptoms including a claimant's: daily activities; location, duration, frequency, and intensity of pain and other symptoms; aggravating and precipitating factors; the dosage, type, side effects and effectiveness of medications; treatment other than medication to relieve pain or other symptoms; any other measures taken to relieve pain or other symptoms; and other factors concerning functional limitations or restrictions caused by pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); seeTommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (“The ALJ may consider many factors in weighing a claimant's credibility, including ... the claimant's daily activities.”) (emphasis supplied).

The Ninth Circuit has emphasized that if a 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, 947 F.2d at 345. However, an ALJ may “reject the claimant's testimony about the severity of [the claimant's] symptoms” if the ALJ also explains his decision “by providing specific, clear, and convincing reasons for doing so.” Brown-Hunter, 806 F.3d at 488-89. In doing so, the ALJ need not engage in “extensive” analysis but should “provide some reasoning in order [for a reviewing court] to meaningfully determine whether [the ALJ's] conclusions were supported by substantial evidence.” Id. at 495.

The ALJ here provided specific, clear, and convincing reasons for discounting Claimant's testimony about her physical symptoms. The ALJ in fact did expressly address Claimant's complaints of fatigue. (Doc. 20-3 at 26) The ALJ contrasted Claimant's “complaints of chronic debilitating symptoms of pain and fatigue” from her severe and non-severe impairments with “the longitudinal physical examination records that “observed [Claimant] in no acute distress in her clinical presentation” and documented Claimant as presenting with “normal gait, station, strength, sensation, and range of motion in the extremities.” (Id. at 26 (citing Doc. 20-8 at 62, 74, 86; Doc. 20-10 at 115⁷, 142; Doc. 20-13 at 42, 44-45, 53, 57, 61, 65, 68, 72, 76, 83, 105, 109, 113⁸, 117⁹))

7 The ALJ apparently mistakenly identified this reference as “Ex. 21F, p. 14” instead of “Ex. 21F, p. 4.”

8 The office visit report at Doc. 20-13 at 111-114 dated January 17, 2020, is a duplicate of that found at Doc. 20-13 at 74-77.

9 The office visit report at Doc. 20-13 at 115-117 dated January 2, 2020, is a duplicate of that found at Doc. 20-13 at 70-72.

Additionally, the ALJ noted that imaging of Claimant's cervical spine revealed degenerative changes in 2009 that remained essentially stable in subsequent imaging of the cervical spine during the relevant period. (Id.) It is noted that Claimant was working fulltime in 2009 (Doc. 20-6 at 20), which was well prior to her alleged onset of disability date in May 2014.

The ALJ further stated that the Claimant had “endorsed 50 to 80 percent pain improvement following injections of her spine, and her right hip.” (Id. (citing Doc. 20-4 at 17, in which Dr. Schwartz listed Claimant's reports of December 2017 of 80% improvement in lumbar pain, and of March 2014 of 50% improvement in hip pain after injection)) Regarding Claimant's migraine pain, the ALJ stated that the medical record showed that Claimant had “good therapeutic benefit from Methocarbamol from muscle spasms, and Relpax for migraine episodes.” (Id. at 27 (citing February 2020 office visit notes from Dr. Saperstein (Doc. 20-13 at 86) documenting that Claimant's migraines “still come but are not as bad. About 4 per month. Relpax works for these.”))

The ALJ's adverse credibility finding is supported by the record and the ALJ's statements of specific, clear and convincing reasons. The ALJ found that Claimant's subjective complaints of “chronic debilitating symptoms of pain and fatigue” were contradicted by the “longitudinal physical examination records[.]” (Doc. 20-3 at 236) While the ALJ did not expressly discuss Claimant's activities of daily living with regard to his discussion of the credibility of Claimant's subjective complaints, the Ninth Circuit has instructed that an ALJ may consider many factors in weighing a claimant's credibility, including the claimant's daily activities. Tommasetti, 533 F.3d at 1039. Yet, “[i]f the ALJ's finding is supported by substantial evidence, the court ‘may not engage in second-guessing.'” Id. (quoting Thomas, 278 F.3d at 959).

Because the ALJ's adverse credibility ruling is supported by substantial evidence and his statements of specific, clear and convincing reasons, the ALJ did not err by not expressly discussing Claimant's activities of daily living.

E. The ALJ Did Not Err in Determining Claimant's RFC

Claimant contends that the ALJ erred as a matter of law in assessing Claimant's RFC by: (1) not considering Claimant's activities of daily living or her medication sideeffects when determining Claimant's RFC, as required by Social Security Ruling (“SSR”) 96-8p; (2) relying on non-medical opinions; (3) failing to consider the duties of Claimant's past relevant job as a school nurse, as required by SSR 82-62; and (4) improperly relying on his own misstatement of the Vocational Expert's testimony. (Doc. 23 at 20-25)

1. The ALJ did not err by failing to discuss Claimant's activities of daily living or side effects from medication

Claimant argues the ALJ erred in his discussion of Claimant's RFC by not “articulat[ing] consideration of” Claimant's activities of daily living or of the side effects from some of Claimant's medications, in violation of SSR 96-8p. (Doc. 23 at 20) Commissioner counters that the ALJ expressly “called into question the accuracy of Claimant's reporting, which necessarily extended to her reporting of her activities.” (Doc. 24 at 11) Regarding consideration of Claimant's side effects from medication, Commissioner asserts that the ALJ addressed and rejected those claims as not consistent with normal examination findings in Claimant's medical record.

SSR 96-8p provides a policy interpretation ruling on assessing an RFC in initial claims.¹⁰ SSR 96-8p, 1996 WL 374184 (eff. July 2, 1996). It requires that an RFC assessment “must be based on all of the relevant evidence in the case record, ” including medical history, laboratory findings, the effects of treatment such as frequency and duration, side effects of medication, reports of daily activities, lay evidence, medical source statements, effects of symptoms “that are reasonably attributed to a medically determinable impairment” including pain, work evaluations, and evidence from attempts to work. Id. (emphasis in original).

10 “Although Social Security Rulings do not carry the ‘force of law,' they are nevertheless binding on ALJs.” Wellington v. Berryhill, 878 F.3d 867, 872 (9th Cir. 2017) (quoting Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. §§ 404.1502(a), 416.920(a)).

The ALJ stated that in making his RFC determination he had considered “all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence” and had also assessed “the medical opinion(s) and prior administrative medical finding(s).” (Doc. 20-3 at 24, 27) In concluding that Claimant's complaints caused by her impairments were not entirely credible, the ALJ found that Claimant's complaints of “chronic debilitating symptoms of pain and fatigue” were in contrast to generally stable longitudinal physical examination records regarding both her severe and non-severe impairments. (Id. at 26) The ALJ stated that Claimant's “longitudinal physical examination records are generally stable” and “routinely observed [Claimant] in no acute distress in her clinical presentation, and additionally reported her with normal gait, station, strength, sensation, and range of motion in the extremities.” (Doc. 20-3 at 26 (citing Doc. 20-8 at 62, 74, 86; Doc. 20-10 at 115, 142; Doc. 20-13 at 42, 44-45, 53, 57, 61, 65, 68, 72, 76, 83, 105, 109, 113, 117))

The “type, dosage, effectiveness, and side effects” of medication taken by a claimant to treat pain or other symptoms are factors relevant to a disability determination and should be considered by the ALJ. 20 C.F.R. § 404.1529(c)(3)(iv); see also SSR 96-8p. The ALJ noted that Claimant complained that she had chronic fatigue “related to a history of thyroid cancer, thyroidectomy, and the need for thyroid replacement therapy.” (Doc. 20-3 at 25) The ALJ concluded that despite Claimant's “complaints of chronic debilitating symptoms of pain and fatigue, . . . the longitudinal physical examination records are generally stable.” (Id. at 26) Thus, although the ALJ did not expressly mention side effects from medication, he did address Claimant's complaints of fatigue and found them unsupported by the record as a whole.

Further, a claimant bears the burden of proving that an impairment, including a medication's side effects, is disabling. See Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) (holding that claimant failed to meet burden of proving that an impairment was disabling where he produced no clinical evidence showing that his prescription narcotic use impaired his ability to work); see also Thomas, 278 F.3d at 960 (in which the Ninth Circuit upheld the ALJ's rejection of claimant's statements that her medications affected her concentration and made her dizzy where no objective evidence was presented and the ALJ properly found her testimony was generally not credible). Claimant has not met her burden of showing that the side effects of her medications impaired her ability to work.

In determining Claimant's RFC, the ALJ declared he had carefully considered the “entire record, including the testimony of [Claimant].” (Doc. 20-3 at 28) Claimant testified about her activities of daily living, including the impacts from her migraine headaches, back pain, hip pain, side effects from migraine and muscle spasm medications. (Doc. 20-3 at 53-56) Claimant described her daily activities such as meal preparation and housekeeping, her need to accommodate her impairments by alternating sitting, reclining, standing, and walking, applying heat, and time spent reading, watching TV, listening to music, and personal hygiene. (Id.) The ALJ did not expressly discuss Claimant's reports of her activities of daily living.

An ALJ's RFC determination will be upheld if it was based on substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficient evidence' to support the agency's factual determinations.” Biestek, 139 S.Ct. at 1154. In Bayliss, the Ninth Circuit rejected a claimant's argument that the ALJ erred by failing to explicitly address pursuant to SSR 96-8p the drowsiness side effect from medication. The Ninth Circuit explained that it would “affirm the ALJ's determination of Bayliss's RFC if the ALJ applied the proper legal standard and his decision is supported by substantial evidence.” 427 F.3d at 1217. The Ninth Circuit stated that “[i]n making his RFC determination, the ALJ took into account those limitations for which there was record support that did not depend on Bayliss's subjective complaints.” Id.

Claimant has not established that the ALJ erred by not expressly discussing Claimant's subjective reports of her activities of daily living. As discussed above, the ALJ addressed reasons in the record that supported the ALJ's finding as to Plaintiff's symptom testimony, which, in addition to the medical evidence, formed the basis for the ALJ's RFC determination. The ALJ's RFC determination was based on substantial evidence in the record in accordance with 20 C.F.R. § 404.1545(a)(1).

2. The ALJ properly relied on non-examining medical opinions to determine Claimant's RFC

Claimant argues that the ALJ erred when he relied on non-examining medical opinions to establish Claimant's RFC. (Doc. 23 at 21-22) Claimant states that Dr. Schwartz did not review medical records dated after June 2018, and Dr. Titanji did not review medical records dated after March 2019, and therefore were not able to consider evidence of Claimant's worsening back and hip pain that occurred in mid-2019.

Title 20 C.F.R. § 404.1520c addresses how the Social Security Administration (“SSA”) will “consider and articulate” prior administrative medical findings and medical opinions for claims filed on or after March 27, 2017. 20 C.F.R. § 404.1520c. As noted, Claimant filed her claim for benefits in March 2018 and so section 404.1520c applies to her claim. (Doc. 20-6 at 2) The 2017 regulations instruct that the SSA “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.... The most important factors we consider when we evaluate the persuasiveness of medical opinions . . . are supportability¹¹ . . . and consistency¹².” 20 C.F.R. § 404.1520c(a). Under these 2017 regulations an ALJ must “explain how [the ALJ] considered the supportability and consistency factors for a medical source's medical opinions.” 20 C.F.R. § 404.1520c(b)(2). That explanation must still be supported by substantial evidence. 42 U.S.C. § 405(g) (“[F]indings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”).

11 The regulations explain that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . ., the more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1).

12 The regulations further instruct that “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).

The ALJ here found the findings of Dr. Schwartz and Dr. Titanji “generally persuasive.” (Doc. 20-3 at 27-28) The ALJ stated that the RFC assessments by Drs. Schwartz and Titanji after their review of the record determined that Claimant was capable of performing “light work activity” and included “environmental and postural limitations . . . consistent with [Claimant's] range of impairments and symptoms[.]” (Id. at 28) The ALJ further stated that the opinions of Drs. Schwartz and Titanji were supported by Claimant's physical examination records documenting that Claimant's “impairments continued to be stable and reasonably well controlled with treatment.” (Id. at 28 (citing consistent reports that Claimant displayed normal gait and stability, normal musculoskeletal range of motion, stability, and muscle strength/tone located at Doc. 20-8 at 62, 74, 86; Doc. 20-10 at 115, 142; Doc. 20-13 at 42, 44-45, 53, 57, 61, 65, 68, 72, 76, 83, 105, 109, 113, 117)) The RFC opinions by Drs. Schwartz and Titanji documented they reviewed Claimant's medical record. (Doc. 20-4 at 16-19, 22-23, 45-46, 49-50)

Claimant argues the ALJ could not rely on the opinions of non-examining doctors Schwartz and Titanji because they did not review medical evidence of worsening of Claimant's pain symptoms from “mid-2019” forward. (Doc. 23 at 21) The ALJ, however, stated that the opinions of Drs. Schwartz and Titanji regarding Claimant's RFC were consistent with physical examination records between September 2019 and March 2020, which variously documented Claimant's normal gait, station, strength in extremities, and musculoskeletal range of motion. (Doc. 20-3 (citing Doc. 20-13 at 44-45, 53, 57, 61, 65, 68, 72, 76, 83, 105, 109, 113, 117)) As the ALJ indicated (Doc. 20-3 at 28), these normal findings were reported in the same office visit summaries in which the doctors also documented Claimant's reports of: pain in her right hip (Doc. 20-13 at 44-45, 52, 59, 63, 66, 82); neck pain or spasms (Id. at 55, 59, 63, 66, 70, 74, 103, 107); and thoracic, lumbar, and/or sacral pain (Id. at 59, 63, 66, 103, 107).

Accordingly, the ALJ relied on substantial evidence to conclude that the record supported the medical opinions of Drs. Schwartz and Titanji, including both the record on which their opinions relied as well the record after March 2019, which was not considered by either Dr. Schwartz or Dr. Titanji. The evidence relied on by the ALJ is enough that a reasonable person might accept it as adequate to support the ALJ's conclusion.

3. The ALJ did not err pursuant to SSR 82-62

Claimant contends the ALJ erred pursuant to SSR 82-62 when the ALJ failed to consider the duties of Claimant's past relevant work in determining Claimant's RFC. (Doc. 23 at 22) Claimant alleges the ALJ failed to comply with the requirements of SSR 82-62 by omitting from his decision certain findings of fact. (Id.) Pursuant to SSR 82-62, when an ALJ finds that the claimant “has the capacity to perform a past relevant job, ” the ALJ's decision must contain findings of fact: (1) “as to the individual's RFC”; (2) “as to the physical and mental demands of the past job/occupation”; and (3) “that the individual's RFC would permit a return to his or her past job or occupation.” SSR 82-62, 1982 WL 31386 at *4. Claimant alleges the ALJ failed to make the second and third findings of fact. (Doc. 23 at 22)

However, the record demonstrates that the ALJ in fact did make these findings in his decision. Based on the testimony of the VE, the ALJ found that Plaintiff's past relevant work as an elementary school nurse was classified as SVP 7, skilled, and light in exertion as generally performed under the Dictionary of Occupational Titles (“DOT”). (Doc. 20-3 at 28); see 20 C.F.R. § 416.967(b)-(c). Also based on the VE's testimony, the ALJ found that Claimant's RFC allowed her to perform her past relevant work as an elementary school nurse as generally performed in the national economy. (Doc. 20-3 at 28-29) The ALJ's findings were therefore consistent with the requirements of SSR 82-62.

Accordingly, Claimant has not established that the ALJ erred pursuant to SSR 8262.

4. The ALJ's finding that Claimant was able to perform her past relevant work is supported by the record

Claimant asserts that the ALJ erred by finding she could perform her past relevant job because when making this finding the ALJ relied on a misunderstanding of the [VE]'s testimony. (Doc. 23 at 23-25) Claimant declares that the ALJ failed to recognize that the VE testified that Claimant had performed the job of elementary school nurse at the medium exertional level even though the job was classified by the DOT as a light level job. (Id.) Claimant argues that the ALJ misunderstood or misstated the VE's testimony when the ALJ “relied for denial upon the false assertion that the VE had indicated only a ‘light' exertional capacity as how [Claimant] generally and actually performed the job.” (Id. at 24-25 (emphasis in original)) Claimant states that SSR 82-62 “requires a vocational assessment of how the job was generally performed and how the job was actually performed” and that the VE had opined that “under all of the RFC hypotheticals presented by the ALJ, including the RFC the ALJ assigned [Claimant] . . . she could not perform the job.” (Id. at 24-25 (emphasis in original))

Although Claimant asserts that the ALJ “wholly fail[ed] to acknowledge that [the VE] told him that [Claimant] had also performed the job at the medium exertional level[, ]” the record is clear that the ALJ did in fact acknowledge the VE told him this. In the ALJ's decision, he found that Claimant was capable of performing her past relevant work as an elementary school nurse. (Doc. 20-3 at 28) The ALJ explained that the VE testified that Claimant had the past relevant work in the job of “elementary school nurse (DOT #075.124.010), a skilled occupation with a specific vocational preparation (SVP) code of 7, generally performed at the light level, actually performed at the light to medium level by [Claimant].” (Id.) The ALJ further noted that the VE had been asked about whether “a hypothetical individual with [Claimant's] age, education, work experience, and functional limitations could perform [Claimant's] past work, either as generally or actually performed[.]” (Id.) The ALJ also stated that the VE testified that the hypothetical individual could perform Claimant's past relevant work as an elementary school nurse “as generally performed at the light exertional level” and the ALJ declared he accepted this testimony. (Id. at 28-29)

The record supports the ALJ's statement. The VE advised the ALJ that the elementary school nurse job was classified as a skilled job at the light exertion level, but it had been done personally at the medium level. (Doc. 20-3 at 78-79) When the ALJ posed an RFC for a hypothetical person with Claimant's characteristics that matched the RFC he later identified for Claimant in his decision, the VE testified that the hypothetical person would be able to do the job. (Id.)

Accordingly, the ALJ's finding that Claimant was able to perform her past relevant work was supported by substantial evidence in the record.

VII. CONCLUSION

Undersigned concludes that substantial evidence supports the ALJ's nondisability determination. The ALJ considered the medical evidence of record and properly discounted Plaintiff's symptom testimony by providing specific, clear, and convincing reasons supported by substantial evidence. Therefore, it is recommended that the Court find that the ALJ did not err in his decision, which is based on substantial evidence. See Orn, 495 F.3d at 630. Where the evidence may be “susceptible to more than one rational interpretation, ” the ALJ's conclusion must be upheld. Thomas, 278 F.3d 954.

Accordingly, IT IS RECOMMENDED that the decision of the Administrative Law Judge dated July 20, 2020 (Doc. 20-3 at 20-29), be affirmed.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.