UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 CRYSTAL NICHOLE CORWIN, No. 1:25-cv-00898-GSA 5 Plaintiff, 6 v. ORDER DIRECTING ENTRY OF 7 JUDGMENT IN FAVOR OF PLAINTIFF Commissioner of Social Security, AND AGAINST DEFENDANT 8 COMMISSIONER OF SOCIAL SECURITY 9 Defendant. (Docs. 14, 18) 10 11 I. Introduction 12 Plaintiff Crystal Nichole Corwin (“Plaintiff”) seeks judicial review of a final decision of 13 the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her applications 14 for disability insurance benefits and supplemental security income pursuant to Titles II and XVI, 15 respectively, of the Social Security Act. After reviewing the record, the Court finds that 16 substantial evidence and applicable law do not support the ALJ’s decision. Therefore, for the 17 reasons stated below Plaintiff’s appeal is granted. 18 II. Factual and Procedural Background 19 On October 28, 2016, Plaintiff applied for benefits alleging disability as of April 2, 2016. 20 AR 241–54. The Commissioner denied the applications initially on April 14, 2017, and on 21 reconsideration on July 27, 2017. Plaintiff requested a hearing which was held before an 22 Administrative Law Judge (the “ALJ”) on March 5, 2019. On April 17, 2019, the ALJ issued a 23 decision denying Plaintiff’s application. The Appeals Council denied review on January 22, 24 2020. On March 17, 2020, Plaintiff filed a complaint in this Court. On December 6, 2021, the 25 Court ordered remand for further administrative proceedings and a new decision regarding 26 whether Plaintiff was disabled. 27 Subsequently, following a somewhat lengthy history, a new hearing was held before an 28 ALJ on May 1, 2025. See, AR 2205-34. The ALJ rendered an unfavorable decision on June 3, 2 2025. AR 2167–89. The appeals council declined review whereupon Plaintiff filed the instant
3 complaint in this Court on July 23, 2025. Doc No. 1.
4 III. The Disability Standard
5 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the
6 Commissioner denying a claimant disability benefits. “This court may set aside the
7 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on
8 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v.
9 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence 10 within the record that could lead a reasonable mind to accept a conclusion regarding disability 11 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less 12 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation 13 omitted). When performing this analysis, the court must “consider the entire record as a 14 whole and may not affirm simply by isolating a specific quantum of supporting evidence.” 15 Robbins v. Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations 16 omitted). If the evidence could reasonably support two conclusions, the court “may not substitute 17 its judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 18 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s 19 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 20 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 21 1035, 1038 (9th Cir. 2008). 22 To qualify for benefits under the Social Security Act, a plaintiff must establish that 23 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 24 last for a continuous period of not less than twelve months. 42 U.S.C. § 25 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is 26 not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful 27 work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists 28 for him, or whether he would be hired if he applied for work. 42 U.S.C. §1382c(a)(3)(B). 2 To achieve uniformity in the decision-making process, the Commissioner has established
3 a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§
4 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding
5 that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.
6 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in
7 substantial gainful activity during the period of alleged disability, (2) whether the claimant had
8 medically determinable “severe impairments,” (3) whether these impairments meet or are
9 medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, 10 Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to 11 perform past relevant work, and (5) whether the claimant had the ability to perform other jobs 12 existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 13 While Plaintiff bears the burden of proof at steps one through four, the burden thereafter shifts to 14 the commissioner at step five to prove that Plaintiff can perform other work in the national 15 economy given her RFC, age, education and work experience. Garrison v. Colvin, 759 F.3d 995, 16 1011 (9th Cir. 2014). 17 IV. The ALJ’s Decision in the Instant Application 18 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 19 since her alleged onset date of April 2, 2016. AR 2170. At step 2, in contrast to Plaintiff’s 20 October 28, 2016 application at which the ALJ only found severe impairments of spine disorder 21 (syrinx) and anxiety (AR 18), the ALJ at the newest administrative hearing held in May 2025 22 found right knee derangement with arthroscopic surgery, abnormal left knee patellar tendon 23 friction syndrome, major depressive disorder, generalized anxiety disorder (GAD), borderline 24 intellectual functioning (BIF), lumbar spine degenerative disc disease (DDD), thoracic spine 25 syrinx, and obesity. AR 2170. At step three, the ALJ found that Plaintiff did not have an 26 impairment or combination thereof that met or medically equaled the severity of one of the 27 impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 2170-73. 28 Prior to step four, the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and concluded that Plaintiff had the RFC to perform light work as defined in 20 CFR 404.1567(b) and 2 416.967(b), with the following limitations:
4 the claimant can sit for six hours in an eight-hour workday, and she can sit for thirty minutes at a time, then she would need to stand for up to three minutes while 5 remaining on task. She can stand and/or walk for four hours in an eight-hour workday, but she can stand and/or walk for 30 minutes at a time, then she would 6 need to sit for up to three minutes while remaining on task. She can occasionally 7 climb ramps, stairs, ladders, ropes, and scaffolds; and she can occasionally balance, stoop, kneel, crouch, and crawl. The claimant should avoid more than
8 occasional exposure to work at high, exposed places. She can understand, remember, and carry out simple instructions. 9 AR 2173–2186. 10 At step four, the ALJ concluded that Plaintiff had no past relevant work. AR 2187. At 11 step five, in reliance on the VE’s testimony the ALJ found that, considering Plaintiff’s vocational 12 profile and her RFC, there were jobs in significant numbers in the national economy that Plaintiff 13 could perform: housekeeper/cleaner, cafeteria attendant, and routing clerk. Accordingly, the ALJ 14 concluded that Plaintiff was not disabled at any time since her alleged disability onset date of 15 April 2, 2016. AR 2188. 16 V. Issues Presented 17 Plaintiff asserts five claims of error: A- the ALJ failed to provide clear and convincing 18 reasons for discounting Plaintiff’s allegations of pain and physical dysfunction; B- the ALJ failed 19 to carry her burden to show that Plaintiff was able to perform a significant number of jobs in the 20 national economy; C- the ALJ failed to provide specific and legitimate reasons for rejecting the 21 treating medical source opinion of Nick Proen, P.T., D.P.T.1; D- the ALJ failed to provide 22 specific and legitimate reasons for rejecting the examining medical source opinion of the 23 psychological consultative examiner Lance Portnoff, Ph.D.; and E- the ALJ failed to properly 24 evaluate the medical source opinions of the following State agency psychological consultants: 25 Sharon Arnes-Dennard, Ph.D., Megan Nicoloff, Psy.D., and Pamela Hawkins, Ph.D.. 26 To begin, because there is significant overlap between claims A and C above, they will be 27 28 1 Hereinafter he will be referred to as Dr. Proen. addressed together under a broader analysis of the RFC. Additionally, each of these 5 claims of 2 error, except that of claim C, will be separately addressed below identified using the same
3 alphabetic letter designation.
4 A. RFC; Plaintiff’s Subjective Symptoms; Dr. Proen’s 5 Opinion
6 1. Applicable Law
7 Before proceeding to step four, the ALJ must first determine the claimant’s residual 8
9 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2 10 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations” 11 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 12 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 13 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 14 A determination of residual functional capacity is not a medical opinion, but a legal 15 16 decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC 17 is not a medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). 18 “[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine residual 19 functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so, the 20 ALJ must determine credibility, resolve conflicts in medical testimony and resolve evidentiary 21 ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). 22 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the 23 24 record such as medical records, lay evidence and the effects of symptoms, including pain, that are 25 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See 26 also 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant 27 medical and other evidence). “The ALJ can meet this burden by setting out a detailed and 28 thorough summary of the facts and conflicting evidence, stating his interpretation thereof, and 2 making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. 3 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). 4
5 ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding
6 subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.
7 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective
8 medical evidence of an impairment that could reasonably be expected to produce some degree of
9 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the 10 claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate 11 the intensity and persistence of [the claimant’s] symptoms to determine the extent to which the 12 symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2. 13 An ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and 14 convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16- 15 3p at *10. Subjective testimony “cannot be rejected on the sole ground that it is not fully 16 corroborated by objective medical evidence,” but the medical evidence “is still a relevant factor in 17 determining the severity of claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 18 F.3d 853, 857 (9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 404.1529(c)(2)). 19 As the Ninth Circuit clarified in Ferguson, although an ALJ may use “inconsistent 20 objective medical evidence in the record to discount subjective symptom testimony,” the ALJ 21 “cannot effectively render a claimant’s subjective symptom testimony superfluous by demanding 22 positive objective medical evidence fully corroborating every allegation within the subjective 23 testimony.” Ferguson v. O'Malley, 95 F.4th 1194, 1200 (9th Cir. 2024) (emphasis in original). 24 In addition to the objective evidence, other factors that can be considered include: 1- daily 25 activities; 2- the location, duration, frequency, and intensity of pain or other symptoms; 3- 26 precipitating and aggravating factors; 4- the type, dosage, effectiveness, and side effects of any 27 medication; 5- treatment other than medication; 6- other measures the claimant uses to relieve 28 pain or other symptom; and 7- other factors concerning the claimant’s functional limitations and restrictions due to pain or other symptoms. See, 20 C.F.R. § 416.929(c)(3) 2 Regardless of source, all medical opinions that are not given controlling weight are
3 evaluated using the following factors: examining relationship, treatment relationship,
4 supportability, consistency, and specialization. 20 C.F.R. § 404.1527(c). The opinion of a non-
5 examining physician, such as a state agency physician, may constitute substantial evidence when
6 it is “consistent with independent clinical findings or other evidence in the record.” Thomas v.
7 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
8 2. Analysis
9 a. Summary of Testimony, Dr. Proen’s Opinion 10 Plaintiff reported that she suffered from chronic pain and had pain throughout her entire 11 body which caused her to feel numbness and pins and needles throughout her body. AR 354. At 12 the hearing before the ALJ, Plaintiff testified that her hands swelled up and became numb (AR 13 2224, 2237), that she was only able to lift and carry 10 pounds (AR 2219), that she was able to 14 sit, stand, or walk for only 20 to 30 minutes at a time (AR 2219), and that she needed a 30-minute 15 break after any activity. AR 2224. Plaintiff also reported suffering numbness in all four 16 extremities (AR 443), tingling and numbness in both feet (AR 754, 761), and that her pain 17 increased with bending, lifting, looking down, sitting, and going from sitting to standing. AR 935. 18 Plaintiff attended physical therapy testing for three days with Dr. Proen. AR 2462. Dr. 19 Proen opined that Plaintiff’s back pain limited her ability to perform repetitive walking, pushing, 20 pulling and lifting. AR 2462. Dr. Proen also noted that Plaintiff required frequent breaks and 21 could only walk for 12 minutes. AR 2462. Finally, he opined Plaintiff could frequently 22 sit/stand/walk, frequently reach overhead with her right arm, occasionally lift 10 pounds, 23 occasionally postural maneuvers, and occasionally utilize finger dexterity. AR 2462. 24 b. Objective Evidence 25 In terms of the physical examination findings throughout the long duration of the relevant 26 period, both parties cite positive and negative findings on various subjects although Plaintiff’s 27 examination findings significantly outnumber those cited by Defendant and cover a much 28 lengthier period of time. Illustrative of some of Plaintiff’s findings, which are found at page 11 of the MSJ, show that Plaintiff had decreased range of motion in her neck and back, positive 2 straight leg raising test bilaterally, tenderness in her neck and back, paraspinal muscle spasm,
3 weakness in her left lower extremity, decreased motor strength in her ankles, pain on range of
4 motion of her bilateral knees, decreased motor strength in her lower extremities, decreased hip
5 flexion and abduction, and decreased sensation along her L4 and L5 nerve distribution.2 Plaintiff
6 also cites records demonstrating a limping gait. See Id. (citing AR 1338, 1343, 1347, 1351, 1464,
7 1476, 1484, 1490, 1497, 1505, 1511).
8 Plaintiff offers nearly 100 citations covering roughly 2,000 pages which begin at AR 1002
9 and conclude at AR 2706. These records span a 10-year period from April 2, 2016, the alleged 10 onset date, through the date of the ALJ’s decision, June 3, 2025 (AR 2167–99). 11 In contrast, Defendant cites findings that appear at AR pages 2470-71, 2477-78, 2483-84, 12 2488-89, 2492-93, 2507-08, 2518-21, 2536-37, 2554-55, 2689-90, 2695, 2701, which include 13 findings of normal/unassisted ambulation, at times negative straight leg raise, and at times 5/5 14 strength. It’s notable that Defendant’s findings cover only the period of June 23, 2023, through 15 March 27, 2025, which comprises only about 20% of the relevant period. 16 Plaintiff’s recitation of abnormalities is significant in breadth, number of examples, and 17 includes the duration of time covering nearly the entire relevant 10-year period. In addition, and 18 upon cite checking a sampling of Plaintiff’s pin citations, they generally appear to support the 19 propositions for which they are cited and further appear significantly more emblematic of the 20 overall record. 21 Of further note, Defendant does not take issue with any of Plaintiff’s cited records, nor to 22 Plaintiff’s descriptions thereof. Finally, from this sampling of citations it also appears that the 23 physical examinations and imaging abnormalities are significantly more supportive of Plaintiff’s 24 claims of pain and dysfunction. 25 2 Page 11 of the MSJ cites AR 641, 645, 648, 651, 654, 657, 660, 906, 931, 936, 942, 946, 950, 951, 954, 955, 1002, 26 1009, 1015, 1024, 1030, 1036, 1121, 1129, 1136, 1142, 1151, 1216, 1220, 1332- 1333, 1338, 1343, 1347, 1351, 1356, 1361, 1438-1439, 1444-1445, 1450-1451, 1458-1459, 1464-1465, 1470-1472, 1476-1478, 1484-1485, 1490- 27 1492, 1497-1499, 1505-1506, 1511-1513, 1935, 1939, 1942-1943, 1946-1947, 1951, 1955, 1958-1959, 1963, 1966- 1967, 1995, 2471, 2478, 2483-2484, 2488-2489, 2492-2493, 2499-2500, 2503-2504, 2507-2508, 2512-2513, 2519- 28 2520, 2523-2524, 2527-2528, 2532-2533, 2536-2537, 2541, 2546, 2549-2550, 2554-2555, 2689- 2690, 2695, 2701, 2706). In response to Plaintiff’s subjective complaints mentioned above, complaints which 2 largely echo Dr. Proen’s opinion, Defendant again canvasses the objective physical examination
3 findings of record, albeit with significantly more examples. Though acknowledging abnormalities
4 like walking with a limp or a walker, Defendant argues that “most other times Plaintiff exhibited
5 normal [ROM] in her cervical and thoracic back, normal sensation, five out of five strength,
6 normal muscle tone, normal gait and station, and no assistive device for ambulation. See, Resp at
7 5–6 (AR 907, 936, 942, 946, 950, 954, 1002, 1008, 1024, 1030, 1036, 1052, 1060, 1065, 1066,
8 1068, 1121, 1135, 1142, 1227, 1250, 1332, 1337, 1338, 1341, 1347, 1351, 1356, 1361, 1438,
9 1444, 1445, 1450, 1451, 1458, 1464, 1470, 1476, 1484, 1490, 1511, 1935, 1939, 1943, 1946, 10 1951, 1955, 1958, 1959, 1963, 1966, 1967, 1971, 1992-2000). 11 A comparison of just two examples from these citations illustrates why Plaintiff’s position 12 is the more convincing. In the first, Plaintiff identifies paraspinal muscle spasm, whereas 13 Defendant cites no countervailing findings. MSJ at 11. In the second, Plaintiff cites weakness in 14 her left lower extremity and decreased motor strength in her ankles (MSJ at 11), whereas 15 Defendant generally identifies “five out of five strength” and “normal muscle tone,” and does so 16 without referring to the body part to which these findings apply. Resp. at 5. Again, Plaintiff’s 17 examples of physical examination abnormalities are more significant in breadth, number, and 18 time period. 19 Next, Defendant references the State Agency physicians’ opinions which are known as 20 “Prior administrative findings” (PAMFs). It is worth noting that although that these opinions 21 may constitute substantial evidence when they are “consistent with independent clinical findings 22 or other evidence in the record” (See, Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) 23 (emphasis added)), PAMFs are, as their name suggests, more appropriately considered findings 24 rather than opinions. 25 Defendant further argues that the ALJ’s findings “were consistent with the imaging 26 evidence that showed spinal abnormalities but no severe ones (AR 2463-64, 2465-66, 2467-68).” 27 Resp. at 3 (emphasis added). Yet a November 30, 2022, cervical spine MRI showed “moderate to 28 severe left and moderate right foraminal stenosis” at C5-C6 (AR 2159 (emphasis added), along with mild central chord stenosis. Plaintiff identified that finding in her brief. MSJ at 12. 2 Thus, given that Plaintiff’s examples of physical examination abnormalities are
3 significantly more in breadth, number and time period than those of contrary findings presented
4 by Defendant, especially considering the MRI imaging which depicts findings of moderate to
5 severe foraminal stenosis and mild central canal stenosis, there exists abundant support for
6 Plaintiff’s allegations of disabling pain and limitation—which happens to be in line with the April
7 2024 opinion of Dr. Proem rendered after 3 days of testing. AR 2462.
8 c. Daily activities
9 As previously noted, Plaintiff testified she could lift/carry 10 pounds and was able to sit, 10 stand, or walk for only 20 to 30 minutes at a time. AR 2219. She further testified that she 11 needed a 30-minute break after any activity. AR 2224. She reported to her treating providers that 12 she was suffering numbness in all four extremities (AR 443), tingling and numbness in both feet 13 (AR 754, 761), and that her pain increased with bending, lifting, looking down, sitting, and going 14 from sitting to standing. AR 935. 15 The RFC provided for light work as defined in 20 CFR 404.1567(b) and 416.967(b) 16 [frequently lift 10 pounds and occasionally 20 pounds, SSR 83-10], with the addition of the 17 following:
18 the claimant can sit for six hours in an eight-hour workday, and she can sit for 19 thirty minutes at a time, then she would need to stand for up to three minutes while remaining on task. She can stand and/or walk for four hours in an eight-hour 20 workday, but she can stand and/or walk for 30 minutes at a time, then she would need to sit for up to three minutes while remaining on task. She can occasionally 21 climb ramps, stairs, ladders, ropes, and scaffolds; and she can occasionally balance, stoop, kneel, crouch, and crawl. The claimant should avoid more than 22 occasional exposure to work at high, exposed places. She can understand, 23 remember, and carry out simple instructions. 24 As to Plaintiff’s daily activities, the ALJ determined that they were inconsistent with the 25 degree of her alleged impairment. 26 Defendant emphasizes that Plaintiff stated she was able to drive, perform personal hygiene 27 tasks and cook (AR 935, 941). Defendant further emphasizes that Plaintiff reported that she 28 could go outside by herself, attend social gatherings, make and attend doctor appointments, care for other people or pets, take kids to the park, dress herself, brush her teeth, shower, prepare her 2 own meals, use the restroom, go to doctors’ appointments, and use her cell phone (AR 2152,
3 2182).
4 In opposition, Plaintiff argues that her daily activities are not transferable to a work
5 setting. Defendant in turn responds that while an ALJ may consider whether a Plaintiff’s daily
6 activities are transferable to the world of work, an ALJ is not obliged to do so, citing Molina v.
7 Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). Defendant further responds that an ALJ may
8 alternatively consider whether a claimant’s activities are inconsistent with the degree of
9 impairment alleged, citing Smart, 53 F.4th at 499 (it is reasonable for an ALJ to rely on the 10 claimant’s level of activity to discount their allegations of totally disabling symptoms). 11 Although it is correct that an ALJ may discount subjective complaints based on daily 12 activities, this is provided: 1- a claimant is able to spend a substantial part of his /her day engaged 13 in pursuits involving the performance of physical functions that are transferable to a work setting, 14 or 2- if the activities contradict his/her other testimony. See, Orn v. Astrue, 495 F.3d 625, 639 15 (9th Cir. 2007). Here, it has not been adequately demonstrated that Plaintiff’s cited activities are 16 readily transferable to a work setting, or that Plaintiff’s daily activities have been shown to 17 adequately contradict her complaints regarding pain and limitation. 18 Moreover, activities of dressing, teeth brushing, showering, using the restroom, using a 19 cell phone, driving, cooking, caring for other people and pets, and taking kids to the park, have 20 not been shown that they adequately refute Plaintiff’s contentions regarding her alleged 21 limitations. In addition, simply making and attending doctor appointments also does not 22 adequately refute her alleged limitations. 23 Finally, Plaintiff’s attending social gatherings, whether considered in isolation or in 24 combination with her other daily activities described above, also do not establish a sound basis 25 upon which the ALJ could properly reject her complaints of severe pain and dysfunction. 26 B. Step Five finding that Plaintiff was able to perform a significant 27 number of jobs in the national economy 28 As mentioned above, while the Plaintiff bears the burden of proof at steps one through four, the burden then shifts to the commissioner at step five to prove that Plaintiff can perform 2 other work in the national economy given her RFC, age, education and work experience.
3 Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). The Agency can meet this burden
4 through the testimony of a VE or, when conclusive, with reference to the Medical-Vocational
5 Guidelines (the grids), 20 C.F.R. pt. 404, subpt. P, app. 2.
6 Here, in concluding that Plaintiff was not disabled, the ALJ relied on the testimony of the
7 VE that a hypothetical claimant with Plaintiff’s vocational profile and RFC would be able to
8 perform jobs existing in significant numbers in the national economy. The jobs identified by the
9 VE were housekeeper/cleaner, cafeteria attendant, and routing clerk. AR 2188. 10 In response, Plaintiff argues:
11 The ALJ’s first hypothetical question that involved an individual who was able to 12 perform the exertional requirements of light work; namely, who was able to stand and walk for 6 hours in an 8-hour workday (Tr. 2229; see SSR 83-10: “the full 13 range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday”). However, the ALJ had found that 14 Plaintiff was only able to stand and walk for 4 hours in a workday and that Plaintiff needed to alternate her position every 30 minutes (Tr. 2173). Thus, the 15 vocational expert’s testimony regarding the jobs of housekeeper/cleaner, cafeteria 16 attendant, and routing clerk did not pertain to Plaintiff and did not substantiate the ALJ’s step five findings. 17 MSJ at 15. 18 This response by Plaintiff’s, at least at first glance, has merit as Plaintiff is correct that the 19 ALJ’s hypothetical to the VE considered a claimant who could perform the full range of light 20 work as it relates to standing/walking (i.e. 6 of 8 hours), while in contrast the actual RFC allotted 21 only 4 hours of standing/walking with position changes every 30 minutes. However, the ALJ 22 subsequently posed another hypothetical which did include Plaintiff’s limitation of 4 hours of 23 standing/walking with 30-minute breaks. The VE then responded to the new hypothetical 24 continuing to identify routing clerk as a job Plaintiff could perform while also adding bench 25 assembler and production assembler. AR 2230–31. 26 C.3 The Rejection of Dr. Proen’s Opinion 27
28 3 As mentioned above, due to significant overlap, Dr. Proen’s opinion and Plaintiff’s testimony have both been addressed in Section A. The difference between the two standards, including the difference between pre and post- D. Dr. Portnoff’s MRFC Opinion 2 Plaintiff’s arguments regarding this claim of error center around the ALJ’s alleged failure
3 to incorporate into the RFC Dr. Portnoff’s opinion that Plaintiff had mild to moderate limitations
4 in her ability to interact with coworkers and the public, along with moderate limitations in her
5 ability to complete a normal workday or workweek without interruptions from her psychiatric
6 condition. MSJ at 21.
7 However, Plaintiff identifies no authority that mild to moderate limitations must be
8 incorporated into the RFC. Further, there is authority suggesting that “Moderate” mental
9 limitations are not per se disabling. See, Rose M. E. v. Saul, 2021 WL 1612091, at *3 (C.D. Cal. 10 Apr. 26, 2021) (SSA defines a ‘moderate’ limitation to mean ‘[t]here is more than a slight 11 limitation in this area, but the individual can still function satisfactorily.’”) (citing HALLEX 12 (Hearings Appeals and Litigation Law Manual) I-2-5-20, referencing Form HA-1152-U3 13 (Medical Source Statement of Ability to do Work-related Activities (Mental)). 14 Despite whether or not mild to moderate limitations regarding a claimant’s psychiatric 15 condition are required to be incorporated into the RFC, from a practical standpoint Plaintiff offers 16 no examples of how the RFC should have been changed to more appropriately account for her 17 moderately limited ability to complete a normal workday or workweek without interruptions from 18 her psychiatric condition. MSJ at 21. 19 Finally, even though the VE testified that more than 10% off-task behavior, or more than 20 1-day of unexcused absences, would be work-preclusive (AR 2231), it is not clear whether the 21 above-referenced “moderate” limitation implies more than 10% off task behavior, or more than 1 22 unexcused absences per month. 23 In sum, Plaintiff has not established that the ALJ committed error by not incorporating Dr. 24 Portnoff’s opinion into the RFC.
25 E. The medical source opinions of the State agency psychological 26 consultants, Sharon Arnes-Dennard, Ph.D., Megan Nicoloff, Psy.D., and Pamela Hawkins, Ph.D. 27
28 March 27, 2017 revision to the regulations, is not sufficiently meaningful in their application here to warrant a separate discussion. 2 As to this claim or error, Plaintiff contends that the ALJ improperly rejected the opinions
3 of psychological consultants Sharon Arnes-Dennard, Ph.D., Megan Nicoloff, Psy.D., and Pamela
4 Hawkins, Ph.D., who reviewed the record and opined that Plaintiff was limited to understanding
5 and remembering one to two-step tasks. See, Plaintiff’s opening brief (Doc. 14, pg 27) citing AR
6 73, 88, 107, 123, 160.
7 Defendant responds that “The State agency psychologists who reviewed the record found
8 that Plaintiff was capable of both one to two step tasks and simple work”. See, Doc. 18, at 6
9 citing AR 72-73. 123-24. 142-43) (emphasis added). Here, a review of the AR reveals that 10 consultants Hawkins and Nicoloff both opined that Plaintiff could maintain concentration, 11 persistence and pace throughout a normal workday/workweek as related to simple/unskilled tasks. 12 AR 123 & 143 (emphasis added). Importantly, simple work is consistent with positions 13 requiring Reasoning level 2, which is applicable for a claimant who is limited to simple, routine 14 tasks. See, Zavalin v Colvin, 778 F.3d 842, 846-47 (9th Cir 2015). Further, the position of 15 routing clerk (DOT 222.687-022) is a Reasoning Level 2 occupation. See, Bates v. O’Malley, 16 2024 U.S. Dist. Lexis 46318 (E.D. Cal 2024) 17 Thus, notwithstanding that the opinions of the consultants may have been improperly 18 rejected by the ALJ, there still was no error committed in doing so. 19
20 VI. Remand for Further Proceedings 21 The Court finds that the ALJ did not provide substantial evidence for rejecting Plaintiff’s 22 subjective statements concerning pain and inability to perform light exertional lifting/carrying, 23 sitting/standing/walking, and for rejecting Dr. Proen’s opinion to the same effect. Remand is 24 therefore warranted for reevaluation of these issues. See Benecke v. Barnhart, 379 F.3d 587, 595 25 (9th Cir. 2004) (“Generally when a court . . . reverses an administrative determination, the proper 26 27 course, except in rare circumstances, is to remand to the agency for additional investigation or 28 explanation.”). In this reevaluation, given the difference between the 9- year period of records described 2 by Plaintiff, as opposed to only 3 years covered by Defendant, the ALJ should give specific 3 consideration as to whether there is any discrete period of time justifying a closed period of 4 5 disability, and additionally whether 9-years of retroactive payment is or is not warranted. 6 Finally, updated records, imaging, and a consultative examination---where practical and 7 prudent---should also be considered when evaluating prospective disability. 8 VI. Conclusion and Order 9 For the reasons stated above, the Court finds that substantial evidence and applicable law 10 do not support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, it is 11 ORDERED that: 12 13 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED 14 2. Defendant’s Cross-Motion, ECF No. 18, is DENIED 15 3. This action is REMANDED to the Commissioner under the fourth sentence 16 of Section 205(g) of the Social Security Act, 42 U.S.C. 405(g). 17 4. The Clerk is directed to enter judgment in favor of Plaintiff, against Defendant, 18 and to close this case. 19 20 21 IT IS SO ORDERED. 22 Dated : May 7, 2026 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28