1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIE BETH D., Case No.: 3:24-cv-00525-W-AHG
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION REGARDING JOINT MOTION FOR JUDICIAL 14 MICHELLE KING, Acting Commissioner REVIEW of Social Security, 1 15
[ECF No. 12] 16 Defendant. 17 18 19
20 21 22
23 24 25 26 1 Michelle King became the Acting Commissioner of the Social Security Administration 27 on January 20, 2025. Although Plaintiff originally brought this action against Former Commissioner Martin O’Malley, this case may properly proceed against Michelle King 28 1 Plaintiff Marie Beth D. (“Plaintiff”) filed this action on March 20, 2024, seeking 2 review of the Commissioner of Social Security’s (“Commissioner”) denial of her 3 application for disability benefits. ECF No. 1. Pursuant to the Court’s Scheduling Order, 4 the parties filed a Joint Motion for Judicial Review on September 27, 2024, stating their 5 positions on the disputed issues in the case. ECF No. 12. This matter is now before the 6 Court for a Report and Recommendation (“R&R”) on the Joint Motion for Judicial Review 7 pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.2(d) of the United States District 8 Court for the Southern District of California. 9 After a thorough review of the parties’ submissions, the administrative record, and 10 applicable law, the undersigned RECOMMENDS that the Court AFFIRM the 11 Commissioner’s denial of disability benefits. 12 I. PROCEDURAL BACKGROUND 13 Plaintiff filed an application for disability insurance benefits pursuant to Title II of 14 the Social Security Act on July 7, 2022. Certified Administrative Record (“AR”) AR 22, 15 273. Plaintiff also filed an application for supplemental security income pursuant to Title 16 XVI on July 7, 2022. AR 22, 283. In both applications, Plaintiff alleged a disability onset 17 date of December 2, 2018. AR 22, 269, 275. The Commissioner denied Plaintiff’s claims 18 for disability insurance benefits and supplemental security income upon initial review on 19 December 22, 2022, and again upon reconsideration on March 2, 2023. AR 174, 181. 20 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which took 21 place telephonically on August 28, 2023. AR 49-86. 22 On December 21, 2023, the ALJ issued an unfavorable decision denying Plaintiff’s 23 current applications, finding that although Plaintiff could not perform her past relevant 24 work, she could perform work that exists in significant numbers in the national economy, 25 and had thus not been disabled from her alleged disability onset date through the date of 26 the ALJ’s decision. AR 35-37. 27 Plaintiff requested review of the ALJ’s decision by the Appeals Council. AR 3. The 28 Appeals Council denied Plaintiff’s request for review on February 13, 2024, making the 1 ALJ’s decision the final decision of the Commissioner. AR 3-5. Plaintiff timely appealed 2 the denial to this Court for judicial review on March 20, 2024. ECF No. 1; 42 U.S.C. § 3 405(g). 4 II. STANDARD OF REVIEW 5 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the 6 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed 7 only if it is not supported by substantial evidence or if it is based upon the application of 8 improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). 9 Substantial evidence means “such relevant evidence as a reasonable mind might 10 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 11 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The 12 standard requires “more than a mere scintilla” of evidence, “but less than a preponderance.” 13 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). The standard is 14 “highly deferential.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 15 2009). Thus, “‘[w]here evidence is susceptible to more than one rational interpretation,’ 16 the ALJ’s decision should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 17 (quoting Burch v. Barnhart, 400 F.3d at 676, 679 (9th Cir. 2005)). However, the Court 18 “must consider the entire record as a whole, weighing both the evidence that supports and 19 the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply 20 by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 21 1009 (9th Cir. 2014) (internal quotation marks omitted)). The ALJ is responsible for 22 determining credibility and resolving conflicts in medical testimony and is also responsible 23 for resolving any ambiguities in the record. Magallanes v. Bowen, 881 F.2d 747, 750 (9th 24 Cir. 1989). The Court will “review only the reasons provided by the ALJ in the disability 25 determination and may not affirm the ALJ on a ground upon which he did not rely.” Id.; 26 see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an 27 administrative order must be judged are those upon which the record discloses that its 28 action was based.”). 1 The Court may also overturn the Commissioner’s denial of benefits if the denial is 2 based on legal error. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014). 3 However, even if the Court finds the decision was based on legal error, a court may not 4 reverse an ALJ’s decision if the error is harmless, “which exists when it is clear from the 5 record that the ALJ’s error was inconsequential to the ultimate nondisability 6 determination.” Id. at 932 (internal quotations and citation omitted); see also Burch, 400 7 F.3d at 679 (citation omitted). 8 III. SUMMARY OF ALJ’S FINDINGS 9 A. The Five-Step Evaluation Process 10 The ALJ follows a five-step sequential evaluation process in assessing whether a 11 claimant is disabled. 20 C.F.R. § 404.1520;2 Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th 12 Cir. 1999). In the first step, the Commissioner must determine whether the claimant is 13 currently engaged in substantial gainful activity; if so, the claimant is not disabled, and the 14 claim is denied. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 15 If the claimant is not currently engaged in substantial gainful activity, the second 16 step requires the ALJ to determine whether the claimant has a “severe” impairment or 17 combination of impairments significantly limiting her ability to do basic work activities, 18 and which has lasted or is expected to last for a continuous period of at least 12 months; if 19 not, a finding of nondisability is made and the claim is denied. Id. See also 20 C.F.R. 20
21 2 Unless otherwise noted, all references to the agency regulations herein are to the 22 regulations in effect at the time of the ALJ’s decision. See, e.g., SSR 16-3, 2016 SSR 23 LEXIS 4 n.27 (S.S.A. 2016) (“When a Federal court reviews our final decision in a claim, we expect the court will review the final decision using the rules that were in effect at the 24 time we issued the decision under review.”); Anne B. v. Comm’r, Soc. Sec. Admin., No. 25 1:18-CV-02146-HZ, 2019 WL 6976034, at *8 (D. Or. Dec. 20, 2019) (collecting cases for the proposition that “[t]he applicable regulations are those in effect at the time the ALJ 26 issued his decision”). The regulations governing Title II disability insurance benefits 27 (“DIB”) are located in 20 C.F.R. §§ 404.1 et seq. The regulations governing Title XVI supplemental security income (“SSI”) are located in 20 C.F.R. §§ 416.101 et seq. 28 1 § 404.1509 (setting forth the 12-month duration requirement). If the claimant has a 2 “severe” impairment or combination of impairments, the third step requires the ALJ to 3 determine whether the impairment or combination of impairments meets or equals an 4 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart 5 P, appendix 1; if so, disability is conclusively presumed, and benefits are awarded. 6 Lounsburry, 468 F.3d at 1114. 7 If the claimant’s impairment or combination of impairments does not meet or equal 8 an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation 9 process. The fourth step requires the ALJ to determine whether the claimant has sufficient 10 residual functional capacity (“RFC”) to perform her past work. Id. Therefore, the ALJ must 11 determine the claimant’s RFC before moving to step four. 12 An RFC is “an assessment of an individual’s ability to do sustained work-related 13 physical and mental activities in a work setting on a regular and continuing basis.” SSR 14 96-9p, 1996 WL 374184, at *1 (July 2, 1996). It reflects the most a claimant can do despite 15 her limitations. 20 C.F.R. § 404.1545(a)(1). An RFC assessment must include an 16 individual’s functional limitations or restrictions as a result of all of her impairments – even 17 those that are not severe (see 20 C.F.R. § 404.1545(a)(1)-(2), (e)) – and must assess her 18 “work-related abilities on a function-by-function basis.” SSR 96-9p, 1996 WL 374184, at 19 *1; see also Valentine, 574 F.3d at 690 (“an RFC that fails to take into account a claimant’s 20 limitations is defective”). An ALJ errs when he provides an incomplete RFC that ignores 21 or discounts “significant and probative evidence” favorable to a claimant’s position. Hill 22 v. Astrue, 698 F.3d 1153, 1161-62 (9th Cir. 2012). 23 An RFC assessment is ultimately an administrative finding reserved to the ALJ. 24 20 C.F.R. § 404.1527(d)(2). However, an RFC determination must be based on all of the 25 relevant evidence, including the diagnoses, treatment, observations, and opinions of 26 medical sources, such as treating and examining physicians. 20 C.F.R. § 404.1545. A court 27 must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal 28 1 standards and substantial evidence in the record as a whole supports the decision. See 2 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 3 At step four of the disability analysis, if the ALJ determines a claimant has sufficient 4 RFC to perform past relevant work, the claimant is not disabled, and the claim is denied. 5 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). The claimant has the burden of 6 proving that she is unable to perform past relevant work at step four. Id. If the claimant 7 meets this burden, a prima facie case of disability is established. Id. 8 At step five, the burden then shifts to the ALJ to establish that the claimant is not 9 disabled because there is other work existing in “significant numbers” in the national or 10 regional economy the claimant can do, taking into account the claimant’s RFC, age, 11 education, and work experience. 20 C.F.R. § 404.1560(c)(1), (c)(2); see also 20 C.F.R. 12 § 404.1520(g)(1). The determination of this issue comprises the fifth and final step in the 13 sequential analysis. 20 C.F.R. § 404.1520; Tackett, 180 F.3d at 1099. 14 B. The ALJ’s Application of the Five-Step Process in This Case 15 At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful 16 activity since her alleged disability onset date of December 2, 2018. AR 25. At step two, 17 the ALJ determined that Plaintiff had the severe impairments of bilateral peroneal 18 neuropathy at the knees and cervical degenerative disc disease. AR 25. After applying the 19 required “special technique” to evaluate mental impairments at step two, the ALJ 20 determined that Plaintiff has mild limitations in understanding, remembering, or applying 21 information; no limitation in interacting with others; and mild limitations in concentrating, 22 persisting, or maintaining pace. AR 26. The ALJ also determined that Plaintiff has mild 23 limitations in adapting or managing oneself. AR 26. See also 20 C.F.R. § 1520a(a)-(c) 24 (outlining the “special technique” for identifying and rating the degree of functional 25 limitation resulting from mental impairments at step two). 26 At step three, the ALJ determined that Plaintiff did not have an impairment or 27 combination of impairments that met or medically equaled the severity of one of the 28 1 impairments in the Listing, noting in particular that he had considered Listings 1.15 2 (disorders of the skeletal spine) and 11.14 (peripheral neuropathy). AR 28. 3 Between steps three and four, the ALJ determined that Plaintiff had the residual 4 functional capacity (“RFC”) to perform sedentary work, as defined by 20 C.F.R. 5 §§ 404.1567(a) and 416.967(a), with certain postural limitations. AR 28. Specifically, the 6 ALJ determined that Plaintiff can perform occasionally postural activities, but she cannot 7 climb ladders, ropes, or scaffolds. AR 28. In addition, she cannot have concentrated 8 exposure to vibration, unprotected heights or hazardous machinery. AR 28. 9 At step four, the ALJ concluded that Plaintiff is not capable of performing her past 10 relevant work as an Informal Waitress (light, semi-skilled), Bartender (light, semi-skilled), 11 Warehouse Worker (medium, unskilled) or Medical Assistant (light, skilled). AR 35. The 12 ALJ reached this conclusion based on the testimony of the vocational expert, who opined 13 during the hearing that the demands of Plaintiff’s past relevant work would be precluded 14 by the RFC assigned by the ALJ. AR 35. The ALJ therefore proceeded to step five. 15 At step five, the ALJ considered that Plaintiff was a “younger individual” as of the 16 alleged disability onset date and Plaintiff has at least a high school education. AR 36. The 17 vocational expert testified that Plaintiff could perform the sedentary jobs of Account 18 Charge Clerk, Call Out Operator, and Lens Inserter. AR 36-37. Based on the vocational 19 expert’s testimony, the ALJ found that Plaintiff was “capable of making a successful 20 adjustment to other work that exists in significant numbers in the national economy,” so 21 therefore Plaintiff was not disabled. AR 37. 22 IV. DISCUSSION 23 Plaintiff brings four claims of error in the Joint Motion: 1) the ALJ failed to properly 24 analyze Plaintiff’s subjective symptom testimony; 2) the ALJ failed to properly evaluate 25 the medical opinion of Plaintiff’s treating provider, Dr. Frederic Martin; 3) the ALJ failed 26 to properly evaluate the medical opinion of the consultative examiner, Dr. Thomas 27 Schweller; and 4) the ALJ erroneously omitted mental limitations from the RFC and from 28 the hypothetical question posed to the vocational expert. ECF No. 12 at 3. 1 A. The ALJ Did Not Err in His Evaluation of Plaintiff’s Testimony 2 Plaintiff asserts that the ALJ erred in discounting her testimony regarding her 3 symptoms of pain and physical dysfunction. Defendant contends that the ALJ properly 4 evaluated Plaintiff’s symptom testimony based on the record evidence. 5 1. Legal Standard 6 An ALJ evaluating a claimant’s testimony regarding the extent of her symptoms and 7 impairments must follow a two-step inquiry. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th 8 Cir. 2014). First, an ALJ must assess whether there is objective medical evidence to support 9 the testimony. Id. If that is the case, and there is no evidence of malingering, an ALJ “can 10 only reject the claimant’s testimony about the severity of the symptoms if he gives 11 ‘specific, clear and convincing reasons’ for the rejection.” Id. (quoting Vasquez v. Astrue, 12 572 F.3d 586, 591 (9th Cir. 2009)). An ALJ must “specifically identify the testimony she 13 or he finds not to be credible ... and explain what evidence undermines that testimony.” 14 Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (quoting Treichler v. Comm’r of Soc. 15 Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)). An ALJ’s decision must be “sufficiently 16 specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s 17 testimony on permissible grounds and did not ‘arbitrarily discredit a claimant’s 18 testimony.’” Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991).3 “[A]n ALJ may 19 20 21 3 On March 28, 2016, the Social Security Administration issued new guidance regarding 22 how to evaluate a claimant’s subjective symptom testimony. See SSR 16-3p, 2016 WL 23 1119029 (Mar. 16, 2016); 2017 WL 5180304 (Oct. 25, 2017) (clarifying SSR 16-3p). Additionally, effective March 27, 2017, the Social Security Administration updated the 24 relevant agency regulations regarding how a claimant’s symptoms are evaluated. See 20 25 C.F.R. § 404.159. Although the ALJ’s opinion was issued after these changes, the jurisprudence governing the applicable two-step inquiry remains good law. See, e.g., 26 Campbell v. Saul, 848 F. App’x 718, 721 (9th Cir. 2021) (applying the two-step inquiry in 27 a recent case appealing an ALJ’s decision from 2018, in which the newer regulations were applied); Vooge v. Saul, 840 F. App’x 253, 254 (9th Cir. 2021) (same, in case involving an 28 1 not reject a claimant’s subjective complaints based solely on a lack of medical evidence to 2 fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 3 (9th Cir. 2005). It is solely within the ALJ’s province to assess the credibility of the 4 claimant’s testimony. Id. A court is therefore “constrained to review the reasons the ALJ 5 asserts.” Id. (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)); Burrell 6 v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 7 2. Plaintiff’s Testimony 8 In an Exertion Questionnaire dated August 5, 2022, Plaintiff stated that she suffers 9 from neuropathy. AR 353. She described experiencing pain after walking half a mile. 10 AR 353. Though able to carry laundry and groceries, she requires two-hour rest periods or 11 naps during the day. AR 354-355. 12 At a telephonic hearing on August 28, 2023, Plaintiff provided further testimony 13 about her physical conditions. AR 51. Plaintiff described difficulty using the restroom— 14 experiencing “shooting pain” that feels like “needles” when she places her feet on the 15 ground. AR 63. Though Plaintiff can drive, she stated that “sometimes [] it hurts so bad 16 where I have to, like, pull over because just pushing my foot—putting the pressure on my 17 feet on the pedal hurts a lot.” AR 64. To deal with swelling of her feet, Plaintiff reported 18 elevating her legs waist-high and says she sits this way for most of the day. AR 65. Plaintiff 19 also described being able to sit for no more than 20 minutes before needing to get up, walk 20 around, or lie down. AR 68. Plaintiff finds it difficult to walk without a cane because her 21 knees or ankles may give out and requires rest after walking the distance of “three small 22 houses.” AR 68. She reported experiencing pain in her wrist, elbows, back and feet when 23 carrying anything over three pounds. AR 69. She also endures an itching sensation 24 underneath the skin of her hands and has issues grasping objects due to the shaking of her 25 hands. AR 69-70. 26 27 n.5 (9th Cir. 2017) (noting SSR 16-3p is consistent with existing Ninth Circuit precedent 28 1 Plaintiff described taking multiple medications, which led to severe side effects 2 including sleepiness. AR 66-67. Plaintiff stated that physical therapy and injections did not 3 provide relief. AR 66. Plaintiff is able to walk 10 or 20 steps to reach the ocean, where she 4 does feel relief when she immerses her feet. AR 59-60. She is also able to spend the 5 majority of her waking hours in a seated position. AR 61. Though Plaintiff uses a cane, she 6 testified that the cane was not prescribed by her treating provider, Dr. Martin. AR 70. 7 Additionally, Plaintiff could not recount her doctor recommending any type of surgery for 8 her back or cervical spine. AR 71. 9 3. The ALJ’s Assessment of Plaintiff’s Symptom Testimony 10 The RFC adopted by the ALJ takes into consideration some of Plaintiff’s symptoms. 11 AR 30. The ALJ limited Plaintiff to sedentary work with additional postural restrictions. 12 AR 28. Sedentary work is defined in 20 C.F.R. § 404.1567(a): 13 Sedentary work involves lifting no more than 10 pounds at a time and 14 occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a 15 certain amount of walking and standing is often necessary in carrying out job 16 duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 17 18 “Occasionally” means “occurring from very little up to one-third of the time.” SSR 83-10, 19 1983 WL 31251, at *5 (S.S.A. Jan. 1, 1983). For sedentary work, this means that “periods 20 of standing or walking should generally total no more than about 2 hours of an 8-hour 21 workday, and sitting should generally total approximately 6 hours of an 8-hour workday.” 22 Id. The ALJ explained in his decision that this RFC accounts for Plaintiff’s bilateral 23 peroneal neuropathy at the knees. AR 30. The limitation to sedentary work addresses 24 Plaintiff’s symptoms of being unable to walk long distances and needing to sit most of the 25 workday. 26 The RFC does not account for Plaintiff’s testimony that she has to elevate her feet, 27 experiences shooting pain while sitting, and is unable to concentrate due to her pain. The 28 ALJ rejected Plaintiff’s testimony about the extent of these symptoms because treatment 1 notes in the medical record show that although Plaintiff had decreased sensation in her feet, 2 she retained 5/5 lower extremity strength and had a normal gait. AR 30. The ALJ 3 recognized that some treatment notes from 2023 refer to an antalgic gait, but they are 4 inconsistent with treatment notes from other contemporaneous medical visits. AR 30. 5 The Court finds sufficient support in the record for the ALJ’s analysis. Treatment 6 notes from Dr. Suthakar, a treating neurologist, on June 22, 2021, indicate normal muscle 7 bulk and tone, 5/5 strength in all extremities, and normal gait. AR 489-90. Plaintiff was 8 treated by Dr. Loomba for pain management in 2021 and 2022. His treatment notes from 9 in-person examinations indicate normal lower extremity strength, AR 521, 534; and 10 Plaintiff denied issues with balance difficulty, gait abnormality, and loss of strength during 11 video visits. AR 525, 528. Treatment notes from physical exams by Plaintiff’s primary care 12 provider from approximately 2021 to 2023 indicate normal gait, normal coordination, and 13 normal lower extremity strength. AR 543, 564, 645, 658.4 In a consulting orthopedic 14 evaluation from December 2022, Dr. Tran observed that Plaintiff ambulates with a “slow 15 and guarded gait,” could “perform toe walking or heel walking,” and “tandem walking,” 16 albeit all slowly and with some pain. AR 613. Dr. Tran found that Plaintiff had 5/5 strength 17 in her lower extremities, no postural or gait instability, and could stand or walk for 6 hours 18 in an 8-hour workday. AR 617. 19 The Court recognizes, as did the ALJ, that there are other notes from physical 20 examinations in the record that indicate problems with Plaintiff’s gait. For example, 21 Plaintiff’s treating neurologist Dr. Martin noted a “somewhat antalgic gait” during several 22 visits in late 2022 and 2023. AR 609, 628, 633, 672, 704. Dr. Schweller, a neurologist who 23 performed a consultative examination in October 2023, observed “a wide-based unsteady 24 gait with a slight steppage to both feet.” AR 723. But these same doctors also found that 25 Plaintiff had normal strength in her lower extremities. AR 672, 704, 723. Plaintiff argues 26 27 4 Plaintiff had several other visits to her primary care physician, but the treatment notes 28 1 that the ALJ relied too heavily on treatment notes from Plaintiff’s allergist in April and 2 July 2023 that reflected a normal gait, but the allergist’s notes are consistent with the 3 treatment notes from Plaintiff’s primary care physician. Compare AR 677, 683, 691, 698, 4 712 with AR 543, 563, 645, 658. In this circumstance, where the ALJ has provided specific 5 reasons supported by the record for discrediting Plaintiff’s symptoms, the Court is not free 6 to second-guess the ALJ’s conclusions, even though some of the evidence in the record 7 may be contradictory. Batson v. Commissioner, 359 F.3d 1190, 1196 (9th Cir. 2004) 8 (“When evidence reasonably supports either confirming or reversing the ALJ’s decision, 9 we may not substitute our judgment for that of the ALJ.”).5 10 The ALJ addressed Plaintiff’s symptom testimony regarding her upper extremities 11 separately. AR 31. Plaintiff’s complaints are that she experiences pain when carrying items 12 over 3 pounds and has difficulty grasping objects because of tremors in her hands. AR 69- 13
14 15 5 The ALJ did not specifically address Plaintiff’s complaints about her ability to focus and concentrate due to pain. The record, however, supports that any failure to address this 16 symptom is harmless. See Batson, 359 F.3d at 1197. The only medical evidence in the 17 record regarding this symptom is a report from a consulting psychologist, Dr. Jerry Livesay, which conflicts with Plaintiff’s testimony. AR 595. Dr. Livesay opined after 18 examining Plaintiff in October 2022 that Plaintiff “was able to sustain her concentration 19 and she worked at a persistent steady pace,” and her “concentration was sustained and she was not unduly distracted.” AR 597, 599. Similarly, although the ALJ’s finding that 20 Plaintiff can drive a car “without noted issues,” AR 31, appears to be incorrect, it is not 21 sufficient to call into question the ALJ’s overall assessment of Plaintiff’s testimony. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) 22 (upholding an ALJ’s decision even where two of the ALJ’s reasons supporting his adverse 23 credibility finding were invalid, because “[s]o long as there remains substantial evidence supporting the ALJ’s conclusions on credibility and the error does not negate the validity 24 of the ALJ’s ultimate credibility conclusion, such is deemed harmless and does not warrant 25 reversal. . . . Here, the ALJ’s decision finding [the plaintiff] less than fully credible is valid, despite the errors identified above.”) (internal alterations, quotations, and citation omitted); 26 Wells v. Comm’r of Soc. Sec., No. 1:17-CV-00078-SKO, 2017 WL 3620054, at *10 (E.D. 27 Cal. Aug. 23, 2017) (“While the ALJ erred in providing one invalid reason for the credibility finding[,] that error was harmless, as substantial evidence still supports the 28 1 70. The ALJ rejected this testimony based on treatment notes that show that Plaintiff had 2 intact sensation and 5/5 strength in her upper extremities, an August 2021 nerve study with 3 normal findings, limited references to hand tremors, and normal findings regarding grip 4 strength and range of motion of her upper extremities. AR 31. 5 The Court finds sufficient support in the record for the ALJ’s analysis. The treatment 6 notes from neurologist Dr. Suthakar note that a nerve study conducted in April 2021 based 7 on Plaintiff’s complaints of tremors was normal. AR 502. Dr. Suthakar’s treatment notes 8 from June 2021 indicate no tremors and 5/5 strength in Plaintiff’s upper extremities. 9 Dr. Loomba’s treatment notes indicate normal strength in the upper extremities upon 10 examination in 2021 and 2022. AR 521, 534. Plaintiff denied tremors and 11 tingling/numbness at televisits in 2021 and 2022. AR 525, 529. Although her primary care 12 physician noted a “slight tremor b/l hands” at a March 2022 visit, Plaintiff stated at that 13 visit that “she is able to type.” AR 542. The report of a consultative orthopedic examination 14 by Dr. Tran on December 5, 2022, notes reduced sensation in the right thumb, but Dr. Tran 15 also found normal strength and grip, and no limitations on grasping or fingering. AR 618. 16 Plaintiff’s treating neurologist Dr. Martin noted in multiple examinations that Plaintiff had 17 normal strength and “no tremors or other adventitious movements,” even though she had 18 diminished sensation in her hands. AR 605, 606, 609, 628, 632-33, 672, 704. As noted 19 above, as long as the ALJ has properly supported his analysis based on a review of the 20 entire record, the Court is not free to engage in second-guessing. See Cook v. Saul, 852 F. 21 App’x 256, 259-60 (9th Cir. 2021); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 22 The ALJ also addressed Plaintiff’s neck pain separately. Although Plaintiff’s 23 medical records support that she has experienced neck pain in the past, the Court could not 24 find any specific testimony by Plaintiff, either in her Exertion Questionnaire or from the 25 hearing transcript, that focused on neck pain. Plaintiff’s testimony focused primarily on the 26 neuropathy in her lower limbs. Nonetheless, the ALJ discussed Plaintiff’s neck limitations. 27 The ALJ noted that an MRI in April 2021 confirmed that Plaintiff has degenerative disc 28 disease, which was further confirmed by cervical x-rays. AR 32. Plaintiff reported 1 improvement with physical therapy. AR 32. Plaintiff received a cervical medial branch 2 block in February 2022. AR 32. After that, the medical notes reflect either full range of 3 motion or a mild limitation in her cervical range of motion. AR 32. 4 The Court finds sufficient support in the record for the ALJ’s analysis. Plaintiff 5 received physical therapy for neck pain in 2021. The therapist’s notes indicate 6 improvement with treatment. AR 448. The notes from physical examinations by various 7 doctors over more than two years indicate either full range of motion or a mild limitation 8 in her cervical range of motion. AR 605, 608, 627, 632, 671, 704. The orthopedic 9 consultative examiner found Plaintiff had normal cervical range of motion in 10 December 2022. AR 617. Plaintiff had a full range of motion in her neck at the neurological 11 consultative examination in October 2023. AR 723. 12 The undersigned finds no error in the ALJ’s evaluation of Plaintiff’s testimony. 13 B. The ALJ Properly Assessed the Medical Opinions 14 Plaintiff asserts that the ALJ failed to properly evaluate the medical opinions of 15 Plaintiff’s treating provider, Dr. Martin, and the consultative examining neurologist, 16 Dr. Schweller. Defendant contends that the ALJ’s decision should be affirmed because the 17 ALJ provided substantial evidence to support his findings that Dr. Martin’s opinion was 18 not persuasive and Dr. Schweller’s opinion was partially persuasive. 19 1. Legal Standard 20 The ALJ “need not take every medical opinion at face value.” Cross v. O’Malley, 21 89 F.4th 1211, 1213 (9th Cir. 2024). “Rather, the ALJ must scrutinize the various – often 22 conflicting – medical opinions to determine how much weight to afford each opinion.” Id. 23 at 1213-14. As the ALJ undertakes this analysis, the most critical factors the ALJ must consider 24 are supportability and consistency. 20 C.F.R. § 404.1520c(a); id. § 416.920c(a). 25 “Supportability means the extent to which a medical source supports the medical opinion 26 by explaining the relevant objective medical evidence.” Woods v. Kijakazi, 32 F.4th 785, 27 791-92 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520c(c)(1)). “Consistency means the 28 extent to which a medical opinion is consistent with the evidence from other medical 1 sources and nonmedical sources in the claim.” Id. at 792 (citing 20 C.F.R. § 2 404.1520c(c)(2)). In assessing a medical opinion’s persuasive value, the “ALJ need only 3 provide an explanation supported by substantial evidence.” Kitchen, 82 F.4th at 740. 4 2. Dr. Martin’s Opinion 5 Dr. Martin completed a Physical Assessment of Plaintiff on March 29, 2023. 6 AR 623-24. He diagnosed Plaintiff with peripheral neuropathy, chronic cervical pain, and 7 chronic lumbar pain. AR 623. He opined that Plaintiff’s symptoms were so severe that they 8 would constantly interfere with the attention and concentration required to perform simple 9 work-related tasks. AR 623. He opined that Plaintiff would need to take excessive breaks, 10 could sit 2-3 hours, and stand or walk 1 hour in an 8-hour workday. AR 623. He opined 11 that Plaintiff could use her hands for grasping, turning, and twisting objects less than 5% 12 percent of an 8-hour workday, and Plaintiff could not perform fine manipulation duties at 13 all. AR 623. He opined that Plaintiff would be absent from work as a result of her 14 impairments more than 4 times per month. AR 623. 15 The ALJ found Dr. Martin’s opinion unpersuasive because the record does not 16 support: 1) issues with attention or concentration; 2) the sitting, standing, and walking 17 limitations; 3) the lifting, carrying, and upper extremity limitations; and 4) the finding that 18 Plaintiff would be absent more than 4 days per month. AR 33-34. Substantial evidence 19 supports the ALJ’s finding. 20 With respect to issues with attention and concentration, the ALJ relied on the report 21 of Dr. Livesay’s consultative psychological examination on October 13, 2022. AR 595- 22 600. Dr. Livesay reported that Plaintiff was able to maintain concentration during the 23 examination and performed well on several cognitive tests. AR 33. The undersigned’s 24 review of Dr. Livesay’s report indicates it is consistent with the ALJ’s analysis. Plaintiff 25 argues that Dr. Livesay’s report is insufficient to support rejecting Dr. Martin’s opinion 26 because there is a material difference between maintaining concentration during a medical 27 evaluation and maintaining concentration in an employment setting. ECF No. 12 at 27. 28 Dr. Martin’s opinion, however, directly contradicted Dr. Livesay. If Plaintiff’s pain would 1 “constantly” interfere with her work activities, it would be reasonable to expect that it 2 would also impact her during a medical evaluation where she was asked to perform 3 multiple cognitive tasks. Therefore, the ALJ adequately provided a reasonable explanation 4 supported by substantial evidence in the record for rejecting this portion of Dr. Martin’s 5 opinion, which is all that is required. Sara M. v. Kijakazi, No. 5:21-CV-01554-JC, 2022 6 WL 17968073, at *7 (C.D. Cal. Dec. 23, 2022). 7 With respect to the sitting, standing, and walking limitations, the ALJ recognized 8 that the nerve conduction study and reduced sensation in the lower extremities warrant 9 some accommodation for her neuropathy. AR 33. The ALJ addressed those issues by 10 limiting Plaintiff to sedentary work in the RFC. AR 33. The ALJ considered Dr. Martin’s 11 opinion that greater limitations were necessary, but rejected it based on multiple references 12 in Plaintiff’s treatment records that reflected normal strength in the lower extremities and 13 Plaintiff’s activities, including riding a bike and driving. AR 33. The undersigned’s review 14 of the record confirms that it is consistent with the ALJ’s analysis. AR 489, 490, 521, 525, 15 528, 534, 543, 564, 596, 613, 617, 645, 648. 16 With respect to the lifting, carrying, and upper extremity limitations, the ALJ found 17 them to be extreme in light of the medical evidence. AR 33. Although Plaintiff had reported 18 some hand numbness and there were notes reflecting reduced sensation in her hands, the 19 treatment notes also show that Plaintiff had normal strength in her upper extremities and a 20 nerve conduction study on her upper extremities was normal. AR 33. Dr. Martin’s own 21 treatment notes state consistently that Plaintiff’s “fine finger movements are intact,” AR 22 605-06, 609, 633, 672, 704, which directly contradicts his opinion that Plaintiff could not 23 perform fine manipulation duties at all. AR 623. 24 With respect to the findings that Plaintiff would be absent more than four days in a 25 month, the ALJ found them to be unsupported because Dr. Martin did not document any 26 limitations in his treatment records to support this opinion, and Dr. Martin does not provide 27 any explanation for this finding in his opinion. AR 34. The undersigned’s review of the 28 entire record confirms this finding. 1 The ALJ’s analysis of and reliance on the record to explain his reasons for finding 2 Dr. Martin’s opinion unpersuasive are sufficient to meet the supportability and consistency 3 standard. The ALJ’s assessment of Dr. Martin’s opinion is supported by substantial 4 evidence. Therefore, the Court should reject Plaintiff’s second claim of error. 5 3. Dr. Schweller’s Opinion 6 Dr. Schweller conducted a neurological consultative examination of Plaintiff on 7 October 10, 2023. AR 722. He opined that Plaintiff: 8 Would be able to stand and walk for 30 minutes out of an eight-hour day and sit for six hours out of an eight-hour day. She would be able to lift 10 pounds 9 occasionally and 10 pounds frequently. She would be unable to ambulate 10 without an assistive device. There would be occasional limits in bending, stooping, squatting, kneeling and crawling. There would be no significant 11 limits of upper extremity fine or gross manipulation. She requires a cane for 12 ambulation and should avoid unprotected heights and exposure to moving machinery. 13 14 AR 34. The ALJ found Dr. Schweller’s opinion to be partially persuasive. He rejected 15 Dr. Schweller’s opinions that Plaintiff was limited to standing or walking for 30 minutes 16 out of an eight-hour day and that Plaintiff needed a cane to walk on the grounds that they 17 “are not consistent with the totality of the evidence.” AR 34. The ALJ pointed out that 18 Plaintiff “did not exhibit these same limitations with other treatment providers in 2023 or 19 at her initial appointment with Dr. Martin, which was just shortly before her 20 December 2022 consultative examination.” AR 34. The undersigned finds that the ALJ 21 accurately summarized the record evidence, which is inconsistent with respect to the 22 Plaintiff’s gait and ability to walk without a cane. AR 489, 490, 521, 525, 528, 534, 543, 23 564, 613, 617, 645, 648. Contrary to Plaintiff’s suggestion, significant portions of the 24 record are from observations of a neurologist, pain specialist, or orthopedic specialist – not 25 an allergist or Plaintiff’s primary care physician. E.g., AR 489, 490 (neurologist); 521, 525, 26 528, 534 (pain specialist); 613, 617 (orthopedic specialist). It does not appear that the ALJ 27 cherry-picked the record to reach his conclusion; instead, he discussed the conflicting 28 evidence and made a determination that Dr. Schweller’s opinion was partially persuasive 1 in light of the evidence. “Where the evidence is susceptible to more than one rational 2 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 3 upheld.” Thomas, 278 F.3d at 954. The undersigned recommends the Court reject 4 Plaintiff’s third claim of error on this ground. 5 C. The ALJ Was Not Required to Include Plaintiff’s Mental Limitations 6 in the RFC 7 Plaintiff contends that the ALJ erred by formulating an RFC that contained no 8 mental work restrictions, even though the ALJ found that Plaintiff had mild limitations in 9 concentration, persistence, and maintaining pace; and in adapting and managing herself. 10 Plaintiff additionally argues that the ALJ should have posed hypothetical questions to the 11 vocational expert that included these mild limitations. Plaintiff further contends that the 12 ALJ compounded this error by ignoring additional mild limitations in Plaintiff’s ability to 13 respond to changes in a routine work setting and respond to changes to work pressures in 14 a usual work setting found by the consultative psychological examiner, Dr. Livesay, even 15 though the ALJ found Dr. Livesay’s opinion persuasive. 16 Defendant disagrees that the ALJ was required to incorporate any mild mental 17 limitations in the RFC or the hypotheticals posed to the Vocational Examiner, and argues 18 that Plaintiff fails to explain how incorporating the limitations would result in a finding 19 that she could not perform the jobs identified by the ALJ at step five. 20 1. Legal Standard 21 At step two of the disability evaluation process, the ALJ did not find that Plaintiff 22 had any severe mental impairments. AR 25. Notwithstanding this finding, the ALJ was 23 required by the regulations to consider the limiting effects of all of Plaintiff’s impairments, 24 even those that are not severe, in determining Plaintiff’s RFC. 20 C.F.R. § 404.1545(e). 25 See also SSR 96-8p, 1996 WL 374184, at *5 (S.S.A. July 2, 1996) (“In assessing RFC, the 26 adjudicator must consider limitations and restrictions imposed by all of an individual's 27 impairments, even those that are not ‘severe.’”). Following these requirements, at step two, 28 the ALJ considered the four broad functional areas of mental functioning set forth in the 1 regulations for evaluating mental disorders. These four functional areas include (1) 2 understanding, remembering, and applying information; (2) interacting with others; (3) 3 concentration, persistence, or maintaining pace; and (4) adapting or managing oneself. See 4 20 C.F.R. § 404.1520a(c)(3) (listing these “four broad functional areas in which [the 5 Agency] will rate the degree of [a claimant’s] functional limitation” when evaluating 6 mental impairments). These four functional areas are also known as the “paragraph B 7 criteria” due to how they are categorized in the listings. See 20 C.F.R., Part 404, Subpart 8 P, Appendix 1. 9 The ALJ found that Plaintiff’s non-severe mental impairments caused mild 10 limitations in all four areas of mental functioning. AR 27. The ALJ’s analysis was based 11 on a psychological consultative examination by Dr. Livesay, AR 595-600, and the opinions 12 of two state agency psychological consultants, Dr. Paxton and Dr. Dilger, AR 107- 26. The 13 ALJ found their opinions “mostly persuasive,” and Plaintiff does not challenge this finding. 14 AR 27. The ALJ rejected Dr. Livesay’s opinion that Plaintiff had a moderate impairment 15 in daily activities because the record did not support that Plaintiff’s housing situation was 16 due to a mental impairment. AR 27. He rejected Dr. Paxton and Dr. Dilger’s opinions that 17 Plaintiff has a mild limitation in interacting with others because there was no support in 18 the record for that conclusion. AR 27. The ALJ went on to state that the RFC he adopted 19 “reflects the degree of limitation the undersigned has found in the ‘paragraph B’ mental 20 function analysis.” AR 27. 21 Plaintiff argues that the Court should follow Hutton v. Astrue, 491 F. App’x 850 (9th 22 Cir. 2012), and find that the ALJ erred by not including Plaintiff’s mild mental limitations 23 in the RFC. In Hutton, the Ninth Circuit held in an unpublished opinion that an ALJ erred 24 by failing to address the plaintiff’s post-traumatic stress disorder (“PTSD”) in the RFC 25 determination and in the hypotheticals to the Vocational Expert in step five. Id. at 850. The 26 ALJ considered the plaintiff’s PTSD at step two and found mild mental limitations as a 27 result. Id. In making the RFC determination, however, the ALJ expressly excluded the 28 plaintiff’s PTSD from consideration because he found the plaintiff was not credible. Id. 1 The Ninth Circuit held that this was error because “the ALJ was required to consider 2 [plaintiff’s] physical impairments and the ‘mild’ limitations his PTSD caused with 3 concentration, persistence, or pace, regardless of whether the ALJ doubted that they were 4 caused by [plaintiff’s] ever-shifting military history.” Id. at 850-51. Hutton is 5 distinguishable, because here the ALJ engaged in a lengthy analysis of Plaintiff’s mild 6 mental impairments at step two and incorporated that analysis expressly in the RFC 7 determination. AR 26-27. The ALJ also discussed the mental limitations in his RFC 8 analysis when assessing the medical opinions of Dr. Martin and Dr. Recalde and explaining 9 why he did not think the record supported mental limitations in the area of attention and 10 concentration. AR 33. 11 In more recent published authority, the Ninth Circuit has held that to demonstrate 12 that an ALJ erred by failing to incorporate mental limitations in the RFC, a plaintiff has to 13 “identify … particular evidence that the ALJ failed to consider or explain why the record 14 does not support the ALJ’s findings” regarding mental functioning. Woods, 32 F.4th at 794. 15 Plaintiff argues that because the ALJ found Dr. Livesay’s opinion persuasive, he was 16 compelled to either incorporate the mental limitations in Dr. Livesay’s opinion or explain 17 his decision not to include them. The undersigned disagrees. The ALJ’s analysis confirms 18 that he reviewed and considered Dr. Livesay’s opinion thoroughly and considered 19 Plaintiff’s mild mental limitations when formulating the RFC. 20 Plaintiff’s assertion of error with respect to the hypotheticals posed to the Vocational 21 Examiner fails for the same reason. “It is … proper for an ALJ to limit a hypothetical to 22 those impairments that are supported by substantial evidence in the record.” Osenbrock. v. 23 Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). If a mild limitation presents “no significant 24 interference with the ability to perform basic work-related activities,” it does not need to 25 be included in the hypotheticals. Id. Here, as discussed above, there is substantial evidence 26 in the record to support the ALJ’s decision not to include Plaintiff’s mild mental limitations 27 expressly in the RFC or the hypotheticals posed to the Vocational Examiner. The 28 | |}undersigned finds no error. Accordingly, the Court should reject Plaintiff's fourth claim of 2 || error. 3 IV. CONCLUSION 4 The Court submits this Report and Recommendation to United States District Judge 5 || Thomas J. Whelan under 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.2(d) of the United 6 || States District Court for the Southern District of California. For the reasons set forth above, 7 | IS HEREBY RECOMMENDED that the District Judge issue an Order: (1) approving 8 adopting this Report and Recommendation, (2) AFFIRMING the decision of the 9 || Commissioner, and (3) directing that judgment be entered in the Commissioner’s favor. 10 IT IS HEREBY ORDERED that any party to this action may file written objections 11 || with the Court and serve a copy on all parties no later than March 3, 2025. The document 12 ||should be captioned “Objections to Report and Recommendation.” Any Reply to the 13 |}Objections shall be filed with the Court and served on all parties no later than 14 || March 10, 2025. 15 IT IS SO ORDERED. 16 Dated: February 14, 2025 7 _ Abia. Xion Honorable Allison H. Goddard 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28