1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VIRGINIA ESTELLE G., Case No.: 21-cv-00674-W-KSC
12 Plaintiff, REPORT AND RECOMMENDATION 13 v. REGARDING JOINT MOTION FOR JUDICIAL REVIEW 14 COMMISSIONER OF SOCIAL
SECURITY, 15 [Doc. No. 15] Defendant. 16 17 18 19 On April 15, 2021, plaintiff Virginia Estelle G. (“plaintiff”) filed a complaint 20 challenging defendant’s (“defendant” or the “Commissioner”) denial of her application for 21 disability benefits. Doc. No. 1. Before the Court is the parties’ Joint Motion for Judicial 22 Review (the “Joint Motion” or “Jt. Mot.”). Doc. No. 15. Having considered the arguments 23 of counsel, the applicable law, and the record before it, the undersigned respectfully 24 submits this Report and Recommendation to United States District Judge Thomas J. 25 Whelan pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(d). For the reasons stated 26 herein, the undersigned RECOMMENDS that the District Court AFFIRM that 27 Commissioner’s decision. 28 /// 1 I. BACKGROUND 2 A. Plaintiff’s Application for Benefits 3 Plaintiff is a 57-year-old female who suffers from fibromyalgia, back pain, knee 4 pain, numbness and tingling in her hands, anxiety and depression. She alleges that these 5 conditions prevent her from working. See generally Doc. No. 1. On February 12, 2019, 6 plaintiff applied for disability insurance benefits and supplemental social security income. 7 Certified Administrative Record (“AR”) at 15.1 In both applications, she alleged a 8 disability onset date of September 2, 2018. Id. Her application was denied at the initial 9 stage and upon reconsideration. Id. At her request, plaintiff was given a hearing before an 10 administrative law judge (“ALJ”), which took place on July 27, 2020 and at which plaintiff 11 appeared with counsel. Id. at 31-55. In a decision dated September 28, 2020, the ALJ 12 concluded that plaintiff was not disabled within the meaning of the Social Security Act. Id. 13 at 25. The Appeals Council denied review of the ALJ’s decision on February 10, 2021, and 14 the decision became final on that date. Id. at 1. 15 B. Summary of the ALJ’s Findings 16 The Administration employs a sequential five-step evaluation to determine whether 17 a claimant is eligible for benefits under the Social Security Act (the “Act”).2 ALJ Jay 18 Levine, who adjudicated plaintiff’s claim, followed this five-step process in rendering his 19 decision. See generally AR at 18-24. At Step One, the ALJ found plaintiff did not engage 20 21 1 The Court adopts the parties’ pagination of the AR. All other record citations are to the page numbers 22 generated by the Court’s CM/ECF system.
23 2 First, the ALJ must determine whether the claimant is engaged in substantial gainful activity. Id., § 404.1520(a)(4)(i). Second, the ALJ must determine whether the claimant suffers from a “severe” 24 impairment within the meaning of the regulations. Id., § 404.1520(a)(4)(ii). Third, if the claimant suffers from a severe impairment, the ALJ must determine whether that impairment meets or is medically equal 25 to one of the impairments identified in the regulations’ Listing of Impairments. Id., § 404.1520(a)(4)(iii). Fourth, if the impairment does not meet or equal a listing, the ALJ must determine the claimant’s residual 26 functional capacity (“RFC”) based on all impairments (including those that are not severe) and whether 27 that RFC is sufficient for the claimant to perform his or her past relevant work. Id., § 404.1520(a)(4)(iv). At the fifth step, the ALJ must determine whether the claimant can make an adjustment to other work 28 based on his or her RFC. Id., § 404.1520(a)(4)(v). 1 in substantial gainful activity from the alleged date of the onset of plaintiff’s disability 2 through the date of the ALJ’s decision. Id. at 18. 3 At Step Two, the ALJ found that plaintiff had the following severe physical 4 impairments: fibromyalgia, obesity, and degenerative disc disease of the lumbar spine. Id. 5 The ALJ further found that these medically determinable impairments “significantly limit 6 [plaintiff’s] ability to perform basic work activities.” Id. However, the ALJ found that 7 plaintiff’s alleged impairment of weakness, tingling and poor grip strength in her upper 8 extremities was not medically determinable. Id. at 19. As to plaintiff’s alleged impairments 9 of diabetes mellitus type 2, gastroesophageal reflux disease, asthma and right knee pain, 10 the ALJ found there was not enough evidence that these impairments “cause[d] more than 11 minimal limitations on her ability to perform basic work activities,” and deemed them non- 12 severe. Id. at 18-19. 13 Addressing plaintiff’s alleged mental impairments, the ALJ determined that her 14 depressive disorder, generalized anxiety disorder, and post-traumatic stress disorder did 15 not alone or in combination “cause more than minimal limitation in [plaintiff’s] ability to 16 perform basic mental work activities.” Id. at 19. In reaching this conclusion, the ALJ 17 evaluated the “four broad functional areas” of mental functioning as defined in the 18 regulations.3 Id. The ALJ considered the results of the May 2019 consultative psychiatric 19 examination and prior administrative medical findings,4 as well as evidence in the record 20
21 22 3 Also called the “paragraph B criteria,” these are: understanding, remembering, and applying information; interacting with others; concentrating, persisting, and maintaining pace; and adapting or managing oneself. 23 See 20 C.F.R. §§ 404.1520a(c)(3) and 416.920a(c)(3). The process of determining whether the claimant has a medically determinable mental impairment and evaluating the impact of any such impairment on 24 these functional areas, is sometimes referred to as the “psychiatric review technique.” See Keyser v. 25 Comm’r, Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011).
4 A “prior administrative medical finding” is “a finding, other than the ultimate determination about 26 whether [the claimant] [is] disabled, about a medical issue” by an agency medical consultant at a prior 27 level of review “based on their review of the evidence in [the] case record.” See 20 C.F.R. § 404.1513(a)(5). Prior administrative medical findings are evaluated by the same standards as medical 28 opinions. See id., § 404.1520c(a). 1 of plaintiff’s mental health treatment and her testimony regarding her symptoms and 2 limitations. Id. at 19- 20. Based upon his consideration of the evidence, the ALJ concluded 3 that plaintiff’s medically determinable mental impairments were non-severe, because they 4 caused no more than “mild” limitations in the functional areas and no more than “minimal” 5 limitation in her ability to do work activities. Id. at 20. 6 At Step Three, the ALJ found that plaintiff’s impairments, whether alone or in 7 combination, did not meet or medically equal one of the impairments listed in the 8 Commissioner’s Listing of Impairments. Id. 9 Proceeding to Step Four, the ALJ found that plaintiff “has the residual functional 10 capacity to perform light work . . . except: climbing, kneeling, crouching [can be done] 11 frequent[ly]; occasional stooping; and no forceful gripping or grasping (the kind of force 12 required to open a tight jar lid or to hold a power tool) with either hand.” Id. at 21. In 13 formulating plaintiff’s RFC, the ALJ considered plaintiff’s subjective symptoms and 14 limitations and the extent to which the symptoms as alleged were consistent with the 15 objective medical evidence. Id. Specifically, the ALJ considered and discussed plaintiff’s 16 subjective function report, work history, and daily activities; a third-party function report; 17 and various medical records, including results of diagnostic imaging. See id. at 21-22. The 18 ALJ concluded that while plaintiff’s impairments could reasonably be expected to cause 19 her alleged symptoms, her subjective assessment of their limiting effects was “not entirely 20 consistent with the medical evidence and other evidence in the record . . ..” Id. at 22. 21 The ALJ also took into consideration the medical opinions and prior administrative 22 medical findings in the record. Id. at 22. Dr. Sabourin, a consultative orthopedist, opined 23 that plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; could 24 sit, stand and walk six hours in an eight-hour workday; and could climb, kneel, crouch and 25 stoop frequently. Id. at 23; see also id. at 430-435. The ALJ found this opinion 26 “persuasive,” observing that Dr. Sabourin “supported his opinion with the analysis in 27 examination report which included notations of full motor strength, normal sensation and 28 normal gait,” but also of “a reduction in range of motion of the cervical . . . and lumbar 1 spine.” Id. at 23. The ALJ also found Dr. Sabourin’s observations and findings were 2 consistent with other evidence in the record. Id. 3 State agency medical consultants Drs. Kwun and Chu both opined that plaintiff was 4 capable of medium work, with some “non-exertional postural and environmental 5 limitations.” Id.; see also id. at 96, 104. The ALJ found that the consultants’ findings were 6 supported but noted that additional evidence that was not available to the consultants 7 “show[ed] the need for additional exertional limitations.” Id. at 23. Accordingly, he 8 deemed their prior administrative medical findings “not persuasive.” Id. 9 Dr. De La Rosa, plaintiff’s treating physician, opined that plaintiff could only lift 10 less than ten pounds frequently, and could sit, stand and walk for only ten minutes at a time 11 and for zero hours total in an eight-hour workday. Id.; see also id. at 876-877. The ALJ 12 stated that although Dr. De La Rosa cited plaintiff’s lower back pain and upper extremity 13 paresthesia in support of these restrictions, those findings were either “not connected to a 14 medically determinable impairment” or “not supported by the objective evidence.” Id. at 15 23. Therefore, the ALJ found Dr. De La Rosa’s opinion “not persuasive.” Id. 16 The ALJ concluded his assessment of plaintiff’s RFC by “acknowledg[ing]” that 17 plaintiff “is not able to perform work at all exertional levels because of her impairments.” 18 Id. He further explained that: 19 [Plaintiff] suffers from fibromyalgia and lumbar degenerative disc disease that 20 are complicated by her obesity, which limits her exertional capacity to the 21 light level. [Plaintiff] is not able to lift and carry 50 pounds given [her] pain from her fibromyalgia and lumbar spine impairments. Additionally, [plaintiff] 22 is only able to stoop occasionally but is able to frequently climb, kneel, and 23 crouch due to the lack of additional signs in the lower extremities. While there is no medically determinable impairment in [plaintiff’s] upper extremities, as 24 discussed above, [plaintiff] has a history of fibromyalgia, which could impact 25 her ability to use her hands for forceful activities. 26 Id. However, the ALJ stated that plaintiff “does not require additional limitations on her 27 work capacity due to the lack of additional signs and findings supporting other severe 28 impairments and more significant limitations on her work capacity.” Id. The ALJ therefore 1 determined that plaintiff could return to her past relevant work as a phlebotomist and 2 appointment clerk. Id. at 24. In so finding, the ALJ referenced the testimony of the 3 vocational expert that an individual of plaintiff’s age, education, work experience and 4 residual functional capacity could perform those jobs. Id. 5 Given his findings at step four, the ALJ did not proceed to step five. See 20 C.F.R. 6 § 416.920(f) and (g) (explaining that the claimant’s impairments “must prevent” a return 7 to past relevant work; only if this condition is met is it necessary to determine if the 8 claimant can “make an adjustment to any other work”); id., § 404.1520(a)(4)(iv) (same). 9 Based upon the foregoing analysis and findings, the ALJ concluded that plaintiff had not 10 been under a disability since October 31, 2016, the date her application was filed. Id. at 24. 11 Accordingly, her application for benefits was denied. Id. at 25. 12 II. DISPUTED ISSUES 13 Plaintiff asserts that the ALJ “failed to properly evaluate” Dr. De La Rosa’s opinion, 14 and that as a result, the ALJ’s RFC determination is erroneous and not supported by 15 substantial evidence. Jt. Mot. at 8-9. As a separate basis for reversal, plaintiff asserts that 16 the ALJ failed to “reconcile[]” his findings as to plaintiff’s mental functioning under the 17 Paragraph B criteria with the RFC, “which provides for no limitations to account for 18 plaintiff’s mental impairments.” Id. at 8. Plaintiff requests that the Court vacate the ALJ’s 19 decision and remand for further administrative proceedings. Id. at 34. 20 Defendant argues that the ALJ properly evaluated Dr. De La Rosa’s opinion in 21 accordance with the “relevant regulations,” under which the opinion of a treating physician 22 is not entitled to any particular weight or deference. Id. at 16-17. Defendant also disputes 23 that the ALJ was required to incorporate mental-function limitations into the RFC, arguing 24 that because plaintiff’s mental impairments were “non-severe” they “[did] not require 25 concrete functional restrictions in an RFC.” Id. at 28-30. Defendant requests that the Court 26 affirm the “ALJ’s well-reasoned and well-supported decision.” Id. at 34. 27 /// 28 /// 1 III. STANDARD OF REVIEW 2 The Commissioner’s final decision “must be affirmed” if it is “supported by 3 substantial evidence, and if the Commissioner applied the correct legal standards.” Batson 4 v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence” 5 means “‘such relevant evidence as a reasonable mind might accept as adequate to support 6 a conclusion.’” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (citation omitted). This 7 Court must review the entire record and consider adverse as well as supporting evidence. 8 See Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). Where the evidence is susceptible 9 of more than one rational interpretation, the Commissioner’s decision must be upheld. Id. 10 However, the Court cannot uphold the decision for reasons “not invoke[d]” by the 11 Commissioner. Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) 12 (citation omitted). The Court may affirm an erroneous decision if the error was harmless, 13 meaning that it “was inconsequential to the ultimate nondisability determination.” Robbins 14 v. Comm’r, Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). 15 IV. DISCUSSION 16 A. The ALJ’s RFC Determination Is Sound 17 “The ALJ is responsible for translating and incorporating clinical findings into a 18 succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). 19 In doing so, the ALJ must consider all evidence, including medical opinions. See 20 C.F.R. 20 § 416.920(a)(3). The crux of plaintiff’s challenge to the ALJ’s determination that she was 21 not disabled is her charge that the ALJ failed to credit the medical opinion of her treating 22 physician, Renato De La Rosa, M.D. in formulating her RFC. See Jt. Mot. at 9-14. 23 As defendant notes, for applications filed after March 27, 2017 – as plaintiff’s was 24 – the ALJ is no longer required to defer or give any specific evidentiary weight to any 25 medical opinions or prior administrative medical findings, including those from the 26 claimant’s treating providers. See 20 C.F.R. § 404.1520c(a). Instead, the ALJ must evaluate 27 the persuasiveness of each opinion in relationship to the record. See 20 C.F.R. 28 § 404.1527(b) (explaining that “[i]n determining whether [a claimant is] disabled, [the 1 Administration] will always consider the medical opinions in [the] case record together 2 with the rest of the relevant evidence [it] receive[s]”). The “most important factors” the 3 ALJ must consider in doing so are “supportability” (i.e., whether the provider supported 4 his or her opinion with citations to objective findings) and “consistency” (i.e., whether the 5 opinion is consistent with other evidence in the record). 20 C.F.R. § 404.1520c(a); see also 6 id. at § 404.1520c(c)(1) and (2) (defining “supportability” and “consistency”). 7 Defendant argues that because “all medical opinions begin on the equal footing 8 under the new regulations,” prior Circuit precedent applying the previous regulations’ 9 evidentiary hierarchy may be disregarded. See Jt. Mot. at 18-19. However, the new 10 regulations explicitly require the ALJ to “explain how [he] considered the supportability 11 and consistency factors for a medical source’s medical opinions” in his decision. 20 C.F.R. 12 § 404.1520c(b)(2). And, it remains the law that “the ALJ must provide sufficient 13 reasoning” to “permit meaningful review” by the Court. Lambert v. Saul, 980 F.3d 1266, 14 1277 (9th Cir. 2020). As one court has observed, it is an open question whether the Ninth 15 Circuit’s guidance as to the adequacy of an ALJ’s reasoning “will meaningfully change” 16 under the new regulations. Allen T. v. Saul, No. EDCV 19-1066-KS, 2020 WL 3510871, 17 at *3 (C.D. Cal. June 29, 2020). With these considerations in mind, the Court turns to the 18 ALJ’s assessment of Dr. De La Rosa’s opinion. 19 1. The ALJ Properly Considered Dr. De La Rosa’s Opinion 20 The opinion evidence at issue is a two-page “Physical Impairment Questionnaire” 21 that Dr. De La Rosa filled in and signed on July 20, 2020. See AR at 876-77. Therein, Dr. 22 De La Rosa assessed plaintiff as having significant functional limitations. See id. Dr. De 23 La Rosa indicated on the questionnaire that plaintiff’s diagnoses included “moderate L4-5 24 degenerative disc disease with low back pain” and “parasthesia,5 bilateral hands and upper 25 26 5 “Paresthesia” refers to a burning or prickling sensation (sometimes called “pins and needles”) that is 27 usually felt in the hands, arms, legs, or feet, but can also occur in other parts of the body. See National Institute of Health | National Institute of Neurological Disorders and Stroke, Parasthesia Information 28 1 extremities,” which caused symptoms of “severe low back pain,” “bilateral lower leg 2 weakness,” and “parasthesia [of the] upper extremities.” See id. at 876. Dr. De La Rosa 3 indicated that as a result of her conditions and symptoms, plaintiff was unable to sit, walk 4 or stand for more than ten minutes at a time and would need to take breaks every ten 5 minutes while working. See id. at 876. Dr. De La Rosa further opined that plaintiff could 6 never lift ten pounds or more, and could use her fingers and hands (for grasping or fine 7 manipulation) for no more than five percent of the day and use her arms (for reaching) for 8 no more than 20 percent of the day.6 Id. at 877. As to whether plaintiff was “physically 9 capable of working an 8-hour day, 5 days a week employment on a sustained basis,” Dr. 10 De La Rosa checked the box “No.” Id. 11 The ALJ found Dr. De La Rosa’s opinion was “not persuasive.” Id. at 23. He noted 12 that the symptoms identified – i.e., lower back pain, lower leg weakness and parasthesia in 13 the upper extremities – were reflected in Dr. De La Rosa’s treatment notes. Id. However, 14 the ALJ found the lower extremity deficits described by Dr. De La Rosa were not supported 15 by any objective evidence and further that Dr. De La Rosa’s opinion was not consistent 16 with the report of a June 2020 MRI of plaintiff’s lumbar spine, which showed only 17 moderate degenerative disc disease and no significant central stenosis. See id. (comparing 18 MRI report with Dr. De La Rosa’s treatment notes). The ALJ also found plaintiff’s upper 19 extremity parasthesias were not connected to any medically determinable impairment. Id.; 20 see also id. at 19 (addressing symptoms of numbness, tingling and weakness in plaintiff’s 21 upper extremities but finding that these symptoms were not connected to a specific 22 diagnosis or to objective findings from an acceptable medical source). The ALJ therefore 23 24
25 Page, https://www.ninds.nih.gov/Disorders/All-Disorders/Paresthesia-Information-Page (last visited 26 May 2, 2022). 27 6 Dr. De La Rosa indicated that he had treated plaintiff once per month for the preceding five months. Id. at 876. On a separate form titled “Onset Date Questionnaire,” he opined that plaintiff had the foregoing 28 1 concluded that Dr. De La Rosa’s opinion was “not consistent with the objective medical 2 evidence of record.” Id. 3 The Court finds the ALJ adequately addressed the supportability and consistency of 4 Dr. De La Rosa’s opinion in the context of the entire record, as required by the regulations. 5 See 20 C.F.R. § 404.1520c(b)(2); id. at § 404.1527(b). Contrary to plaintiff’s statement that 6 the ALJ failed to explain why Dr. De La Rosa’s opinion was not persuasive, see Jt. Mot. 7 at 12, the ALJ identified the objective evidence that he found conflicted with Dr. De La 8 Rosa’s opinion. AR at 23. Furthermore, the ALJ’s evaluation of Dr. De La Rosa’s opinion 9 is preceded by his detailed review of the record and his assessments of plaintiff’s subjective 10 testimony and other opinion evidence in the record. See id. at 21-23. The ALJ described 11 in detail those portions of the record that supported his decision and acknowledged the 12 contrary evidence while explaining his reasons for finding that evidence unpersuasive. Id. 13 Plaintiff’s charge that the ALJ “offer[ed] no analysis” but only “cherry pick[ed]” the 14 evidence (Jt. Mot. at 14) simply ignores the ALJ’s thorough and detailed discussion. See 15 Lewis v. Apfel, 236 F.3d 503, 513 (9th Cir. 2001) (noting that the ALJ must “discuss and 16 evaluate the evidence that supports his or her conclusion,” but is not required to do so under 17 any particular heading). 18 Plaintiff also asserts that “the evidence of record clearly provides support for Dr. De 19 La Rosa’s opined limitations.” Jt. Mot. at 14. Plaintiff then identifies facts that arguably 20 support Dr. De La Rosa’s opinion, including her long history of pain and objective findings 21 of decreased range of motion, tenderness and antalgic gait. See id. But, plaintiff fails to 22 address the contradictory evidence cited by the ALJ, including objective findings, 23 plaintiff’s testimony and other opinions and prior administrative medical findings in the 24 record. See AR 21-23. Even if (as plaintiff asserts) there is evidence in the record to support 25 Dr. De La Rosa’s opinion, the ALJ found that other evidence in the record conflicted with 26 or undermined that opinion. The ALJ’s interpretation of the medical evidence, not 27 plaintiff’s, is controlling. See Ford, 950 F.3d at 1149 (noting that “the ALJ ‘is responsible 28 for determining credibility, resolving conflicts in medical testimony, and for resolving 1 ambiguities’”) (citation omitted). It is not the role of this Court to “substitute its judgment” 2 for the ALJ’s. Lewis, 236 F.3d at 509. 3 2. Substantial Evidence Supports the ALJ’s RFC Determination 4 Having found that the ALJ’s assessment of Dr. De La Rosa’s opinion was not the 5 product of legal error, the Court must nevertheless independently assess whether 6 substantial evidence supports the ALJ’s RFC determination. Ahearn, 988 F.3d at 1115; 7 see also Webb v. Colvin, No. 2:12-cv-00592-GMN-PAL, 2013 WL 5947771, at *2 (D. 8 Nev. Nov. 5, 2013) (“[T]he issue before the Court is not whether the Commissioner could 9 reasonably have reached a different conclusion, but whether the final decision is supported 10 by substantial evidence.”). To that end, the Court has independently reviewed the 11 administrative record, and concludes that substantial evidence supports the ALJ’s 12 determination that plaintiff could perform a modified range of light work and his 13 subsequent conclusion that plaintiff was not disabled. 14 The objective medical evidence confirms plaintiff’s fibromyalgia, obesity, and 15 degenerative disc disease of the lumbar spine. See AR at 307-09, 322, 439-41, 485, 561, 16 595, 758, 792, 822-23, 864, 888-889. The record reflects plaintiff’s frequent complaints 17 of pain in her back, knee, and upper extremities, which was variously treated with 18 acupuncture, medication, cortisone injections and nerve blocks with varying degrees of 19 effectiveness. See id. at 552, 561, 586, 752, 758, 765. Plaintiff reported to providers in 20 2017 that she engaged in moderate to strenuous exercise for approximately 140 minutes 21 per week. AR at 564, 675. However, she reported in 2018 that she had fallen several times 22 and discontinued exercising for fear of falling again. AR at 323, 741-42. 23 On May 12, 2017, plaintiff presented to Dr. Yea with complaints of parasthesias and 24 back pain. On examination, she exhibited full range of motion and normal strength. AR 25 at 572-73. 26 On April 30, 2018, plaintiff was seen by Dr. Watson, a pain management specialist. 27 AR at 765-78. On examination, Dr. Watson noted that plaintiff “display[ed] no overt pain 28 behaviors” and exhibited 5/5 strength and intact sensation in her upper and lower 1 extremities. Id. at 771. She was tender to palpation along the spine and exhibited an 2 antalgic gait. Id. Dr. Watson recommended a comprehensive pain management program, 3 additional medications, a program of low impact aerobic exercise after evaluation by a 4 physical therapist, aqua therapy, a trial with a TENS unit, and biofeedback. Id. at 320-21, 5 772, 775. 6 Progress notes from Dr. De La Rosa dated between June 2019 and January 2020 7 reflect that plaintiff often complained of back pain, leg pain, fatigue, and tingling and 8 weakness in her hands, yet findings on physical examination were largely normal. See id. 9 at 439-48, 482-495. Dr. De La Rosa ordered an x-ray of both hands, which was completed 10 on July 16, 2019 and revealed no abnormal findings. Id. at 455, 511. 11 On May 9, 2019, plaintiff was seen by Dr. Sabourin for an orthopedic consultation. 12 Id. at 430-35. On examination, she exhibited reduced grip strength “with questionable 13 effort” on the left side as compared to the right. Id. at 431-32. She was able to sit and 14 stand with normal posture and to sit comfortably. Id. at 432. She got in and out of her 15 chair and on and off the examination table without difficulty and without the use of 16 assistive devices. Id. She exhibited normal gait although she “move[d] slowly.” Id. 17 Plaintiff’s range of motion in her lumbar spine was slightly less than normal, but she 18 exhibited full range of motion of the shoulders, elbows, wrists, fingers and thumb. Id. at 19 432-33. She complained of pain and exhibited tenderness, but Dr. Sabourin did not observe 20 any swelling in her upper extremities or back. Id. Her range of motion in her hips and feet 21 was grossly normal, and in her knees and ankles less than normal. Id. at 433. Plaintiff 22 complained of tenderness, but again Dr. Sabourin did not observe any swelling. Id. She 23 exhibited normal motor strength and normal sensation to touch. Id. at 434. 24 Dr. De La Rosa’s progress note dated June 2, 2020 documents plaintiff’s subjective 25 complaints of chronic pain and limitations with “prolonged” sitting and standing, but there 26 were no objective findings at this visit as it was conducted by video. Id. at 861-864. Dr. 27 De La Rosa ordered an MRI of plaintiff’s lumbar spine, which was conducted on June 29, 28 2020. Id. at 872-73. The results of this imaging study showed moderate degenerative disc 1 disease at L4-5 with no significant central stenosis. Id. There were no significant findings 2 at any other lumbar disc level. Id. 3 Dr. De La Rosa’s progress notes dated July 13, 2020 reflect continued complaints of 4 back pain and bilateral weakness and tingling in both hands. Id. at 880-83. On examination, 5 there were no objective neurological findings; plaintiff exhibited mild weakness of her 6 upper right arm and mild poor grip on the left. Id. Dr. De La Rosa documented the findings 7 from the June 29, 2020 lumbar spine MRI and, consistent with those findings, diagnosed 8 plaintiff with moderate degenerative disc disease at the L4-5 level. Id. One week later, on 9 July 20, 2020, plaintiff was seen again by Dr. De La Rosa. Id. at 885-889. She complained 10 again of back pain and tingling and weakness in her upper extremities. Id. Physical 11 examination again revealed no objective neurological findings, but plaintiff was noted to 12 have mild right-sided weakness, “but good grip compared with the left.” Id. at 888. 13 Plaintiff reported in her Function Report that she lives alone, and can prepare simple 14 meals, take care of her dogs, do laundry and dishes, and drive a car. Id. at 224-231. A 15 third-party function report likewise confirmed that plaintiff takes care of her dogs, does 16 “basic household chores” and can prepare food so long as it “does not require the use of a 17 knife. Id. at 235-242. 18 The Court finds the foregoing is relevant and substantial evidence that is adequate 19 to support the ALJ’s determination that Dr. De La Rosa’s opinion is inconsistent with both 20 the objective medical evidence, taken as a whole, and plaintiff’s self-reported ability to 21 perform daily activities. The Court further finds this substantial evidence also supports the 22 ALJ’s conclusion that plaintiff was not disabled. 23 For the above reasons, the Court finds that the ALJ applied the correct legal standard 24 in evaluating Dr. De La Rosa’s opinion, and that he adequately explained his reasons for 25 finding that opinion unpersuasive. The Court further finds that the ALJ’s RFC, and 26 subsequent determination that plaintiff is not disabled, is supported by substantial evidence. 27 The Court therefore RECOMMENDS that plaintiff’s request for remand on this basis be 28 DENIED. 1 B. The ALJ Did Not Err by Not Including Mental Limitations in the RFC 2 As a separate basis for reversal, plaintiff asserts that the ALJ further erred by failing 3 to “reconcile” his findings regarding plaintiff’s psychiatric conditions with the RFC, 4 “which provides for no limitations to account for plaintiff’s mental impairments.” Jt. Mot. 5 at 26. Plaintiff acknowledges that the ALJ found her mental limitations “non-severe,” but 6 asserts that he was nevertheless required to “address whether or not those limitations would 7 further impact plaintiff’s RFC for light work.” Id. at 27. Plaintiff states that the “Social 8 Security Regulations explicitly state [that] the findings in the [psychiatric review] need to 9 be considered in the RFC.” See id. (citing 20 C.F.R. §§ 404.1520a(d)(3) and 10 416.920a(c)(3)). 11 The Court agrees that the regulations require the ALJ to consider the limiting effects 12 of all impairments, including those which are non-severe. Yet, as one court has explained, 13 “[c]onsideration of ‘the limiting effects of all impairments’ does not necessarily require 14 the inclusion of every impairment into the final RFC if the record indicates the non-severe 15 impairment does not cause a significant limitation in the plaintiff’s ability to work.” 16 Medlock v. Colvin, No. CV 15-9609-KK, 2016 WL 6137399, at *5 (C.D. Cal. Oct. 20, 17 2016) (rejecting similar argument as a misapprehension of the regulations) (emphasis in 18 original). Plaintiff’s contrary position is not supported by a plain reading of the regulations, 19 which require the ALJ to “document application of the [psychiatric review] technique in 20 [his] decision.” 20 C.F.R. § 404.1520a(d). The text goes on to state that: 21 the [ALJ’s] written decision must incorporate the pertinent findings and conclusions based on the technique. The decision must show the significant 22 history, including examination and laboratory findings, and the functional 23 limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to 24 the degree of limitation in each of the functional areas described in paragraph 25 (c) of this section. 26 Id. at § 404.1520a(d)(4). The Ninth Circuit has explained that these regulations 27 “contemplate that written decisions [by] the ALJ . . . should contain a ‘narrative rationale’” 28 /// 1 regarding a claimant’s mental impairments and limitations. Keyser v. Comm’r, Soc. Sec. 2 Admin., 648 F.3d 721, 725 (9th Cir. 2011). 3 Here, the ALJ documented his application of the psychiatric review technique and 4 made a specific finding as to plaintiff’s degree of limitation in each functional area. See 5 AR at 19-20. He determined that plaintiff had the following medically determinable mental 6 impairments: depressive disorder, generalized anxiety disorder, and post-traumatic stress 7 disorder. Id. at 19. He discussed the findings by Dr. Nicholson, the consultative 8 psychiatrist, that plaintiff “would be no more than mildly limited” by her alleged 9 impairments, as well as the prior administrative findings by Drs. Bergmann-Harris and 10 Caruso-Radin, who both concluded that plaintiff’s mental impairments were non-severe. 11 Id. at 20. The ALJ found the opinions and prior administrative findings of Drs. Nicholson, 12 Bergmann-Harris and Caruso-Radin “consistent with the totality of the evidence” and 13 therefore “persuasive.” Id. The ALJ also considered plaintiff’s historical mental health 14 treatment, which displayed “little evidence of a comprehensive mental status examination 15 showing [plaintiff’s] functioning in relevant areas.” Id. He also found it significant that 16 plaintiff’s alleged mental impairments “long predate[d] the current period,” but she was 17 nevertheless able to work despite her symptoms and with little evidence that she required 18 treatment, and indeed had not sought treatment for her mental health conditions until June 19 2020. Id. Ultimately, the ALJ determined that plaintiff’s mental impairments caused no 20 limitations in the four “paragraph B” areas of mental functioning and were “non-severe.” 21 See id. The Court finds this satisfied both the regulations and the Ninth Circuit’s “narrative 22 rationale” requirement. See § 404.1520a(d)(4); Keyser, 648 F.3d at 725. 23 The Court also notes that the ALJ explicitly stated at Step Two that his RFC “reflects 24 the degree of limitation” he found as a result of the psychiatric review technique. AR at 20. 25 Plaintiff complains that this statement was “boilerplate,” Jt. Mot. at 27, but that argument 26 ignores the detailed review of the evidence that precedes it. The regulations require 27 discussion and evaluation, which the ALJ satisfactorily provided here by “rating and 28 assessing [plaintiff’s] limitations in each of the[] four functional areas.” See Hoopai v. 1 Astrue, 499 F.3d 1071, 1078 (9th Cir. 2007). He was not required to do more. See id. 2 (affirming ALJ’s decision); see also Phillips v. Colvin, 61 F. Supp. 3d 925, 940 (N.D. Cal. 3 2014) (explaining that a “difficulty” in one of the four functional areas “does not 4 automatically translate to an RFC finding with these limitations” because “the relevant 5 inquiry is whether the medical evidence supports a particular RFC finding”); Kimberley A. 6 v. Kijakazi, No. 2:20-cv-01802-SB, 2022 WL 19203, at *6 (D. Or. Jan. 3, 2022) (finding 7 that “the ALJ was not required to incorporate [p]laintiff’s Paragraph B criteria in the 8 RFC”).7 9 Plaintiff cites the unpublished Ninth Circuit decision in Hutton v. Astrue, 491 Fed. 10 App’x 850 (9th Cir. 2012), for the proposition that the ALJ could not “disregard his own 11 findings.” See Jt. Mot. at 27. In Hutton, the ALJ refused to consider a claimant’s post- 12 traumatic stress disorder based on a finding that the claimant was not credible. 491 Fed. 13 App’x at 850. The Ninth Circuit found that “[t]his exclusion was legal error,” and reversed. 14 Id. Here, in contrast, the ALJ addressed plaintiff’s depression, anxiety and post-traumatic 15 stress disorder at Step Two, found that her mild impairments caused no functional 16 limitations, and explicitly incorporated those findings into the RFC. See AR at 19-20. The 17 Court therefore finds Hutton is distinguishable and does not require remand on the facts of 18 this case. 19 Finally, the Court is not persuaded that the alleged error caused any harm. As noted, 20 the ALJ found that plaintiff’s mental impairments caused “no limitation in understanding, 21
22 7 Moreover, numerous courts in this Circuit have found that an ALJ may properly incorporate the findings 23 from the psychiatric review technique into the RFC by reference, as the ALJ did here. See Webb, 2013 WL 5947771, at **12-13; see also, e.g., Nabil I. v. Saul, No. 2:18-06294 ADS, 2020 WL 1332086, at *6 24 (C.D. Cal. Mar. 23, 2020) (rejecting similar argument where the ALJ “analyzed [p]laintiff’s mental health 25 condition in a highly detailed analysis immediately before fashioning the RFC” and collecting cases); Thompson v. Saul, No. 1:18-cv-00137-BAM, 2019 WL 3302471, at *7 (E.D. Cal. 2019) (finding on 26 similar facts that the ALJ properly “considered” the claimant’s non-severe mental impairments where he “conclude[d] that those non-severe mental impairments did not necessitate [the] inclusion of any mental 27 limitations in the RFC”); Ball v. Colvin, No. CV 14-2110-DFM, 2015 WL 2345652, at *3 (C.D. Cal. May 15, 2015) (finding, on similar facts, that “the record shows that the ALJ did consider [p]laintiff’s mild 28 1 |}remembering or applying information; no J/imitation in interacting with others; no 2 || imitation in concentrating, persisting or maintaining pace; and no limitation in adapting or 3 ||managing oneself.” AR at 20 (emphasis added). Given these explicit findings, the Court 4 ||cannot agree with plaintiff that “additional mental limitations would further erode the 5 || occupational base and potentially eliminated [sic] [p]laintiff’s ability to perform” her past 6 || work as a phlebotomist or appointment clerk. Jt. Mot. at 27. 7 For these reasons, the Court finds the ALJ did not err by not including functional 8 || limitations in plaintiff's RFC based on her mild mental impairments and RECOMMENDS 9 || that plaintiff's request for reversal and remand on this basis be DENIED. 10 RECOMMENDATION and ORDER 11 For the reasons stated herein, the Court finds that the ALJ applied the correct legal 12 || standards and that his determination that plaintiff not disabled is supported by substantial 13 ||evidence. Therefore, IT IS HEREBY RECOMMENDED that the District Court issue an 14 |}Order: (1) approving and adopting this Report and Recommendation; (2) denying 15 || plaintiff's request for remand; (3) affirming the decision of the Commissioner; and (4) 16 || directing that judgment be entered in defendant’s favor. 17 IT IS HEREBY ORDERED that any objections to this Report and 18 ||Recommendation must be filed no later than May 27, 2022 and that responses to any 19 || objections must be filed no later than June 6, 2022. The parties are advised that failure to 20 || file objections within the specified time may waive the right to raise those objections on 21 ||appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 22 1153, 1156 (9th Cir. 1991). 23 IT IS SO ORDERED. 24 || Dated: May 3, 2022 Mh 25 WU LA _———_ % Hori. Karen S. Crawford United States Magistrate Judge 27 28