Hackelton v. Saul

• Court: District Court, S.D. California
• Decided: March 23, 2021
• Docket: 3:19-cv-02242
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || CAL HACKLETON, Case No.: 19-CV-02242-WVG 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 || v. MOTION FOR SUMMARY ANDREW SAUL, Commissonerof | )EFENDANT'S CROSS-MOTION 15 ° FOR SUMMARY JUDGMENT 16 Defendant. [Doc. Nos. 19, 21.] 17 18 19 This is an action for judicial review of a decision by the Commissioner of Social 20 ||Security, Andrew Saul, (“Commissioner” or “Defendant”) denying Cal Hackleton 21 ||C‘Plaintiff’) supplemental security income (“SSI”) benefits under Title XVI of the Social 92 ||Security Act (the “Act’) and Social Security Disability Insurance under Title II of the Act. 23 || The parties have filed cross-motions for summary judgment. For the reasons stated below, 24 Court DENIES Plaintiff's motion for summary judgment and GRANTS Defendant’s 25 || cross-motion for summary judgment. 26

1 || I. LEGAL STANDARD 2 Pursuant to the Social Security Act, the Social Security Administration (“SSA”) 3 ||administers the SSI program. 42 U.S.C. § 901. The Act authorizes the SSA to determine 4 || who is entitled to benefits and to establish and implement an administrative appeals process 5 ||for unsuccessful claimants. /d. § 423 et seq. Defendant, as Acting Commissioner of the 6 || SSA, is responsible for the Act’s administration. Jd. § 902(a)(4), (b)(4). 7 A. The SSA’s Sequential Five-Step Process 8 The SSA employs a sequential five-step evaluation to determine whether a claimant 9 || is eligible for benefits under the Act. 20 C.F.R. §§ 416.920, 404.1520. To qualify for such 10 benefits, a claimant must establish (1) s/he suffers from a medically-determinable 11 ||impairment' which can be expected to result in death or has lasted or can be expected to 12 for a continuous period of twelve months or more and (2) the impairment renders the 13 ||claimant incapable of performing the work s/he previously performed or any other 14 ||substantially gainful employment that exists in the national economy. See 42 U.S.C. 15 || §§ 423(¢d)(1)(A), (2)(A); 1382(€)(3)(A). 16 A claimant must meet both requirements to qualify as “disabled” under the Act, id. 17 ||§ 423(d)(1)(A), (2)(A), and bears the burden of proving s/he “either was permanently 18 || disabled or subject to a condition which became so severe as to create a disability prior to 19 date upon which [his or] her disability insured status expired.” Johnson v. Shalala, 60 20 1428, 1432 (9th Cir. 1995). An administrative law judge (“ALJ”) presides over the 21 ||five-step process to determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24-25 22 ||(2003) (summarizing the five-step process). If the Commissioner finds a claimant is 23 disabled or not disabled at any step in this process, the review process is terminated at that 24 ||step. Corrao v. Shalala, 20 F.3d 943, 946 (9th Cir. 1994). 25 26 || 27 ||' A medically-determinable physical or mental impairment “is an impairment that results 28 from anatomical, physiological, or psychological abnormalities, which can be shown by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

1 Step one in the sequential evaluation considers a claimant’s “work activity, if any.” 2 C.F.R. § 404.1520(a)(4)().. An ALJ will deny disability benefits if the claimant is 3 || engaged in “substantial gainful activity.” Jd. §§ 404.1520(b), 416.920(b). 4 If a claimant cannot provide proof of gainful work activity, the ALJ proceeds to step 5 ||two to establish whether the claimant has a medically severe impairment or combination 6 ||of impairments. The so-called “severity regulation” dictates the course of this analysis. /d. 7 404.1520(c), 416.920(c); see also Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987). 8 An ALJ will deny a claimant’s disability claim if the ALJ does not find a claimant 9 || suffers from a severe impairment or combination of impairments which significantly limits 10 |/the claimant’s physical or mental ability to do “basic work activities.” 20 C.F.R. 11 || § 404.1520(c). The ability to do “basic work activities” means “the abilities and aptitudes 12 ||necessary to do most jobs.” /d. §§ 404.1521(b), 416.921(b). 13 However, if the impairment is severe, the evaluation proceeds to step three. At step 14 ||three, the ALJ determines whether the impairment is equivalent to one of several listed 15 ||ampairments which the SSA acknowledges are so severe as to preclude substantial gainful 16 |lactivity. Jd. §§ 404.1520(d), 416.920(d). An ALJ conclusively presumes a claimant is 17 ||disabled so long as the impairment meets or equals one of the listed impairments. □□□ 18 || § 404.1520(d). 19 Before proceeding to step four, the ALJ must also ascertain the claimant’s Residual 20 ||Functional Capacity (“RFC”). Jd. §§ 404.1520(e), 404.1545(a). An individual’s RFC is 21 or her ability to do physical and mental work activities on a sustained basis despite 22 limitations from his or her impairments. Jd. §§ 404.945(a)(1), 404.1545(a)(1). The RFC 23 ||analysis considers “whether [the claimant’s] impairment(s), and any related symptoms, 24 ||such as pain, may cause physical and mental limitations that affect what [the claimant] can 25 ||do in a work setting.” Jd. §§ 404.1545(a)(1), 416.945(a)(1). In establishing a claimant’s 26 ||RFC, the ALJ must consider relevant evidence as well as the claimant’s impairments, 27 ||including those categorized as non-severe. Jd. § 404.1545(a)(3), (e). If an ALJ does not 28

1 ||conclusively determine a claimant’s impairment or combination of impairments is 2 || disabling at step three, the ALJ’s evaluation advances to step four. 3 At step four, the ALJ uses the claimant’s RFC to determine whether the claimant 4 ||can perform the requirements of his or her past relevant work. /d. § 404.1520(f). So long 5 a claimant has the RFC to carry out his or her past relevant work, the claimant is not 6 || disabled. /d. § 404.1560(b)(3). Conversely, if the claimant either cannot perform or does 7 \|not have any past relevant work, the analysis presses onward. 8 At the fifth and final step of the SSA’s evaluation, the ALJ must verify whether the 9 || claimant is able to do any other work considering his or her RFC, age, education, and work 10 ||experience. /d. § 404.1520(g). If the claimant can do other work, the claimant is not 11 ||disabled. However, if the claimant is not able to do other work and meets the duration 12 ||requirement, the claimant is disabled. /d. Although the claimant generally continues to 13 ||have the burden of proving disability at step five, a limited burden of going forward with 14 evidence shifts to the SSA. At this stage, the SSA must present evidence demonstrating 15 ||that other work the claimant can perform—allowing for his or her RFC, age, education, 16 work experience—exists in significant numbers in the national economy. Id. 17 404.1520, 1560(c), 416.920, 404.1512(f). 18 B. SSA Hearings and Appeals Process 19 In accordance with Defendant’s delegation, the Office of Disability Adjudication 20 Review administers a nationwide hearings and appeals program. SSA regulations 21 ||provide for a four-step process for administrative review of a claimant’s application for 22 ||\disability payments. See id. §8§ 416.1400, 404.900. Once the SSA makes an initial 23 determination, three more levels of appeal exist: (1) reconsideration, (2) a hearing before 24 ALJ, and (3) review by the Appeals Council. See id. §§ 416.1400, 404.900. If the 25 claimant is not satisfied with the decision at any step of the process, the claimant has 60 26 || days to seek administrative review. See id. §§ 404.933, 416.1433. Ifthe claimant does not 27 \|request review, the decision becomes the SSA’s binding and final decree. See id. 28 404.905, 416.1405.

I A network of SSA field offices and state disability determination services initially 2 ||process applications for disability benefits. The processing begins when a claimant 3 ||completes both an application and an adult disability report and submits those documents 4 ||to one of the SSA’s field offices. If the SSA denies the claim, the claimant is entitled to a 5 ||hearing before an ALJ in the SSA’s Office of Disability Adjudication and Review. □□□ 6 ||§§ 404.929, 416.1429. A hearing before an ALJ is informal and non-adversarial. /d. 7 404.900(b). 8 If the claimant receives an unfavorable decision by an ALJ, the claimant may request 9 ||review by the Appeals Council. /d. §§ 404.967, 416.1467. The Appeals Council will grant, 10 ||deny, dismiss, or remand a claimant’s request. Jd. §§ 416.1479, 404.979. If a claimant 11 disagrees with the Appeals Council’s decision or the Appeals Council declines to review 12 ||the claim, the claimant may seek judicial review in a federal district court. See id. 13 || §§ 404.981, 416.1481. Ifa district court remands the claim, the claim is sent to the Appeals 14 || Council, which may either decide the matter or refer it to another ALJ. Jd. § 404.983. 15 || I. BACKGROUND 16 A. — Procedural History 17 On February 9, 2016, Plaintiff filed a Title I] application for a period of disability 18 ||and disability insurance benefits and a Title XVI application for supplemental security 19 ||income. (Administrative Record (“AR”) 224-30.) In both applications, Plaintiff alleged his 20 || disability began on November 30, 2015. Jd. On May 10, 2016 the SSA denied these initial 21 ||claims. (AR 70-98.) The SSA also denied Plaintiffs claims upon reconsideration on 22 || August 30, 2016. (AR 99-126.) Plaintiff then requested a hearing before an ALJ, which 23 ||occurred on August 15, 2018. (AR 31-69.) The ALJ, Kevin W. Messer, issued an 24 || unfavorable decision on October 19, 2018. (AR 10-25.) Plaintiff requested the Appeals 25 Council to review the ALJ’s decision on December 18, 2018. (AR 219-23.) The Appeals 26 ||Council denied Plaintiff's request for review on September 26, 2019. (AR 1-3.) Plaintiff 27 || filed this appeal on May 4, 2020. 28

1 B. Medical Overview 2 Plaintiff is a male veteran who suffers from Celiac Disease. (AR 100, 259, 355, 3 ||672.) Plaintiff also suffers from a fractured right knee and a fractured right wrist. (AR 4 100.) Plaintiff also alleges he experiences diminished energy and mood. /d. Additionally, 5 Plaintiff suffers from Osteoporotic and Chronic Obstructive Pulmonary Disease. /d. 6 || Plaintiff has also been diagnosed with substance addiction. (AR 814.) Plaintiff has a 7 || history of using tobacco and cannabis. (AR 502, 814.) 8 1. Treatment from Veterans Village of San Diego between August 2014 9 and March 2016 10 Plaintiff's treatment notes from the Veterans Village of San Diego show that 11 || Plaintiff initially had trouble with anxiety and depression; however, those negative feelings 12 subsided as Plaintiff’s situation in life improved. 13 Plaintiff's initial therapy session was on September 10, 2014. (AR 659.) □□□□□□□□□□□ 14 ||record indicates that, in 2014, Plaintiff was in therapy to relieve depression. (AR 654.) 15 || Plaintiff often discussed his “bad mood.” (AR 646, 647.) On November 24, 2014, Plaintiff 16 ||indicated he was experiencing sadness and grief. (AR 643.) Plaintiff also often mentioned 17 ||that his health was causing him concerns. (AR 640, 634.) 18 Plaintiff's mental health saw improvements in early 2015. On January 26, 2015, 19 Plaintiff claimed things were “pretty good,” and he was “getting more medical 20 appointments done.” (AR 629.) On February 18, 2015, Plaintiff told his therapist that after 21 || discovering that he has a gluten allergy, he felt “joy and relief to realize what was affecting 22 physically.” (AR 626.) 23 In March 2015, Plaintiff's treatment notes show that he largely focused on his 24 childhood and past relationships. (AR 621, 622, 623.) In April, Plaintiff continued to 25 discuss his health and feelings about his past. (AR 616, 617, 618.) On June 15, 2015, 26 || Plaintiff once again asserted he was “feeling [a lot] better since they found out what [was] 27 || wrong with [him].” (AR 483, 606.) On June 22, 2015, Plaintiff reported that his situational 28 || depression was gone. (AR 481, 604.) Plaintiff's record from July and early August 2015

1 ||shows that he was doing well generally. (AR 596, 600, 602, 603.) However, on August 2 2015, Plaintiff reported feeling anxious about an upcoming driving test. (AR 472, 595.) 3 || Plaintiff missed several appointments in September 2015. (AR 468-66, 589-91.) However, 4 ||on September 14, 2015, Plaintiff “admit[ted] to intermittent situational depression and says 5 ||he feels [okay] most of the time.” (AR 469.) Plaintiff continued to explore his emotions 6 ||in October and November 2015. (AR 583-87.) 7 Plaintiff's mood was “bright,” and he appeared happy on December 4, 2015. (AR 8 ||459, 582.) Plaintiff felt “pretty good” on December 18, 2015. (AR 458, 581.) On January 9 ||4, 2016, Plaintiff's mood was “pleasant.” (AR 580.) However, he noted that he was 10 stressed out “[a]bout [Veterans Affairs Supportive Housing], waiting for an apartment, and 11 || waiting to hear from the hospital about a job.” Jd. Nevertheless, Plaintiff denied 12 ||depression. Jd. 13 On February 4, 2016, Plaintiff once again expressed feeling anxious about waiting 14 ||to hear back about his application for an apartment. (AR 456, 579.) He denied having 15 suicidal or homicidal thoughts at this time. /d. On February 22, 2016, Plaintiff's mood 16 || was described as “calm, talkative, and engaging.” (AR 578.) Plaintiff’s treatments note 17 March 9, 2016 indicated he “graduated from [the Veterans Village of San Diego] and 18 ||moved into his own place.” (AR 577.) The note also stated that Plaintiff's “response to 19 || [the] treatment was excellent.” Jd. 20 2. Treatment from the Department of Veterans Affairs between January 21 2016 and May 2018 22 Plaintiffs medical record from the Department of Veterans Affairs largely indicates 23 ||Plaintiff has no significant mental health concerns, except for a few notable instances 24 ||summarized below. Plaintiff was often described as having “appropriate interaction with 25 || other workshop members and staff.” (AR 396, 405-16, 886-941.) 26 On February 8, 2016, Plaintiff's medical notes indicate that “he started with the 27 ||[Wellness and Vocational Enrichment] Program [on] May 2015 and had to pause briefly 28 ||due to physical illness. [He] returned [and] continued with [the] program and obtained

1 || work again[;] he became ill from working too many hours and quit his job to re-engage 2 || with work therapy.” (AR 892.) The note further indicates that Plaintiff's “challenges to 3 || gainful employment is primarily his ability to maintain his stamina and energy during the 4 || workday without comprising his health.” /d. Plaintiff was repeatedly classified as having 5 indication of suicidal or homicidal ideation. (AR 411, 890, 891.) On February 22, 6 2016, Plaintiff did not attend the Work Intervention Group meeting because “he was not 7 || feeling well and excused himself to go home;” however, there were “no safety concerns 8 ||noted.” (AR 886-87). On February 29, 2016, Plaintiffs medical record notes that Plaintiff 9 ||has the following diagnoses: employment problem, stressful work schedule, cannabis 10 || dependence in remission, and cannabis dependence with intoxication. (AR 885.) 11 In March 2016, Plaintiff's progress notes indicate that he has problems related to 12 ||employment; however, there was otherwise no significant concerns to his mental health. 13 ||(AR 866-85.) Plaintiff continued to deny suicidal and homicidal ideation. (AR 868, 869.) 14 March 2, 2016, Plaintiff had a colonoscopy procedure, which revealed that “the perianal 15 ||and digital rectal examinations were normal.” (AR 424, 939.) However, the procedure 16 revealed a five-millimeter polyp in the sigmoid colon; the polyp was ultimately 17 ||removed. Jd. 18 On April 8, 2016, Plaintiff reported feeling anxious about his physical limitations. 19 ||(AR 863-64.) He noted that a trigger for his anxiety was a self-expectation to work above 20 ||and beyond his physical capacity. Jd. Plaintiff once again denied suicidal and homicidal 21 |/ideation. Jd. On April 21, 2016, Plaintiff noted he felt anxiety about his upcoming medical 22 ||exam because he was worried that he has not put down all the medical diagnoses for which 23 || he was being treated. (AR 861.) 24 On May 23, 2016, Plaintiff reported feeling “angry about his Celiac Disease.” (AR 25 || 858-59.) Plaintiff claimed he has “diligently changed his dietary lifestyle by learning about 26 || what foods he can and cannot eat.” /d. Plaintiff stated he has been finding support through 27 friends at the Marijuana’s Anonymous group and denied suicidal ideation. Jd. 28

1 On June 2, 2016, Plaintiff reported that he feels no pain in his right knee but 2 ||experiences stiffness if he sat for a while. (AR 853.) Plaintiff also claimed that he felt 3 || tired and his “mood could be better.” /d. On June 27, 2016, Plaintiff represented he has 4 ||been “dealing with his symptoms of anxiety through support system” and continued to 5 suicidal or homicidal ideation. (AR 842-43.) Plaintiff also stated he was continuing 6 || to learn about his Celiac Disease and the food that he can and cannot tolerate. Id. 7 On November 1, 2016, Patient represented he could walk a quarter of a mile each 8 ||day before he gets fatigued. (AR 815.) On November 3, 2016, Plaintiffs mood was 9 || euthymic, but he expressed he has started to experience “feelings and emotions differently” 10 ||since he stopped smoking. (AR 810.) Plaintiff represented he has been meeting with a 11 ||therapist from the Veterans Village of San Diego twice a month, but that the therapy was 12 ||terminating soon. (AR 811.) Plaintiff believed he would benefit from “continuing to 13 ||develop healthy coping skills and health[y] communication, particularly with ‘women.’” 14 15 On December 14, 2016, Plaintiff reported struggling with “feelings.” (AR 801.) In 16 ||the same note, Plaintiff also stated “his mood is largely euthymic, and he has less anger 17 ||than before.” (AR 800-01.) However, Plaintiff also claimed he still struggled with anxiety 18 ||and gets overwhelmed over little things. /d. The treating physician diagnosed Plaintiff 19 || with unspecified anxiety. (AR 804.) However, Plaintiff declined the offer of medications. 20 21 Plaintiff's progress notes indicated he had some issues between January 2017 and 22 ||March 2017. On January 31, 2017, Plaintiff represented he has been feeling a “low level 23 ||of anxiety and dull sense of purpose.” (AR 792-93.) On February 03, 2017, Plaintiff 24 || reported his chronic fatigue has been worse for the past few months. (AR 785-86.) Plaintiff 25 represented “he felt that [the] fatigue symptoms were improving overall but has felt ‘more 26 || tired’ overall since August 2016.” Jd. Plaintiff believed his fatigue may be related to his 27 ||Celiac Disease. Jd. On February 10, 2017, Plaintiff attended the first session of the 28 || Acceptance and Commitment Therapy (“ACT”) for Depression. (AR 778.) Plaintiff was

1 || diagnosed with depression and anxiety. /d. On March 7, 2017, Plaintiff reported he has 2 || terminated therapy at the Veterans Village of San Diego, but that he was attending weekly 3 ||mental health therapy appointments. (AR 770-71.) The note states Plaintiff's mood was 4 ||euthymic. (AR 771.) 5 Plaintiff's progress notes indicate improvements beginning in April 2017. A 6 || psychiatric note on April 7, 2017 states Plaintiff “has been feeling less anxious overall and 7 \|that his therapy appointments have helped him increase his overall well-being.” (AR 763- 8 On April 14, 2017, Plaintiff also “reported feeling less anxious overall and more 9 || prepared to utilized skills to decrease anxiety.” (AR 762.) He also represented he was 10 ||/“increasingly able to monitor his thoughts and restructure them with more realistic 11 ||cognitions.” /d. Additionally, Plaintiff reported noticing positive changes in his 12 |/interpersonal relationships. /d. On April 25, 2017, Plaintiff said he was still experiencing 13 ||anxiety but felt he has had improvement in managing his symptoms. (AR 758-59.) 14 || Plaintiff reported similar feelings on June 13, 2017; August 1, 2017; August 29, 2017; and 15 || October 3, 2017. (AR 748-49; AR 745-46; AR 740-41; AR 732-33.) On November 7, 16 2017, Plaintiff noted he was happy and stated, “I can’t complain about my life, it’s really 17 || good.” (AR 729-30.) Plaintiff also represented he has been managing his Celiac Disease 18 || without problems. /d. On December 12, 2017, Plaintiff stated he has been “irritable, 19 || ‘grumpy,’ and tired;” however, he was jovial during the meeting and did not show signs of 20 ||depression. (AR 726-28.) On December 27, 2017, Plaintiff reported he felt stressed but 21 || was “doing okay.” (AR 724.) 22 On January 9, 2018, Plaintiff stated, “things are going good,” and he was happy. 23 ||(AR 721.) On February 20, 2018, Plaintiff reported he was “worked-up” over paperwork; 24 || however, he generally felt that the process “is not as bad as he perceived it to be” after he 25 || gets through the paperwork. (AR 716-17.) 26 A PHQ-9 screen on March 20, 2018 revealed Plaintiff did not have depression. (AR 27 \|712.) Specifically, although Plaintiff also complained of “feeling tired or having little 28 || energy,” the overall score of the screen was 3. Id. This score indicated a lack of depression.

1 ||/d. The same report indicates a PHQ-2 screen test was also performed and showed Plaintiff 2 || was negative for depression. /d. Plaintiff was also assessed for suicidal ideation on this 3 ||date but denied being suicidal. AR 710. Plaintiff also indicated his overall health was 4 “fine.” /d. On April 3, 2018, Plaintiff reported “everything’s doing good.” (AR 709.) 5 3. State Agency Medical Consultant Report 6 In a medical report at the initial level, a state agency examiner, Dr. J. McWilliams, 7 ||noted Plaintiff has the following impairments: osteoporosis, other disorders of 8 || gastrointestinal system, alcohol and substance addiction disorders, and affective disorders. 9 ||(AR 77.) The examiner wrote that only the osteoporosis and the alcohol and substance 10 |/addiction disorders were severe. /d. It was also noted that Plaintiff's allegations of 11 ||diminished mood and concentration is not supported by the Mental Status Evaluation 12 || (“MSE”). (AR 78, 91.) Upon reconsideration, Dr. Marsha McFarland, another doctor who 13 ||examined Plaintiff, determined the evidence does not alter the findings of the previous 14 determination. (AR 105.) Hence, Plaintiff was considered as “not disabled” for both his 15 Disability Insurance and Disability Insurance Benefits claims at the initial and 16 ||reconsideration levels. (AR 82, 95, 110, 123.) 17 4. Disability Report Appeal Form 18 In addition to the above record, Plaintiff claimed in his Disability Report Appeal 19 || Form that he “has begun isolating himself [from] others and spends a lot of his time isolated 20 his family and loved ones.” (AR 333.) It was also noted “his physical state [was] 21 || deteriorating due to his extreme weight loss, and his depression and anxiety have increased 22 ||markedly since he [was] unable to provide for himself.” (AR 334.) 23 5. Function Report, April 3, 2016 24 Plaintiff stated in a Function Report that his energy and stamina limited his work 25 hours and activities. (AR 314.) Inthe same report, Plaintiff also indicated he went outside 26 daily and was able to perform household chores such as laundry and cleaning. (AR 315.) 27 || However, Plaintiff's limited energy and stamina affects his ability to go out. (AR 318.) At 28 same time, Plaintiff also indicated that he enjoys reading, watching television, writing,

1 ||talking on the phone, and meeting people. /d. Plaintiff also attends meetings, plays, 2 ||museums, and concerts. /d. 3 C. Plaintiff’s Testimony 4 Plaintiff testified at the hearing that he is still able to drive. (AR 37.) Despite his 5 || wrist pain, Plaintiff testified he is still able to take care of himself. (AR 38.) At the time 6 || of the trial, Plaintiff worked as a mail clerk for about five to ten hours per week. (AR 39.) 7 \|From around September 2015 to December 2015, Plaintiff worked as a driver and valet. 8 ||(AR 40-41). Before that, Plaintiff worked as a cab driver from 2013 to 2014. (AR 41.) 9 Plaintiff testified that while he was working as a valet, he was having problems with 10 ||his knee. (AR 43.) He said he had to use his hands to pull his legs into the car. 11 || Plaintiff broke his kneecap during an altercation with a roommate in 2014. (AR 44.) 12 || His injury was originally diagnosed as a sprain; however, he later found out that it was an 13 ||unhealed fracture. /d. Plaintiff testified he was still experiencing discomfort from his knee. 14 ||/d. According to Plaintiff, his knee injury occurred when he was still working as a taxi 15 ||driver. (AR 45). He lost his job as a taxi driver because he started smoking marijuana 16 || again to help with the pain. Jd. According to Plaintiff, he still has trouble walking because 17 ||of his knee. (AR 48.) Plaintiff has good and bad days, depending on how active he is. Id. 18 Due to Plaintiffs right wrist problem, he has limited capacity to lift objects. (AR 19 ||49). Because Plaintiff never knows when his wrist would give him trouble, Plaintiff reports 20 ||he is always cautious of what he picks up. (AR 48-49.) 21 Plaintiff also has a chronic obstructive lung disease. (AR 50.) As a result, Plaintiff 22 ||experiences shortness of breath. (AR 50-51.) Plaintiff testified that before getting the 23 inhaler, he would experience shortness of breath from just having conversations. (AR 51.) 24 || However, the inhaler has helped him out substantially. /d. But Plaintiff still experiences 25 ||shortness of breath when he is engaging in physical activities. Jd. 26 Plaintiff was diagnosed with Celiac Disease in 2015. (AR 46.) He suffered from 27 |\|malabsorption, which caused his weight to decrease to 130 pounds. /d. Plaintiff was 28 ||treated for his disease and was advised to stop eating gluten. (AR 47.) Plaintiff testified

1 ||he also had some mental health issues that were related to his Celiac Disease. (AR 53.) 2 || Plaintiff's mental health problem has improved; however, Plaintiff still attends Marijuana 3 || Anonymous and Narcotics Anonymous therapy meetings. /d. The number of times 4 || Plaintiff attends those therapy sessions depends on his stress level. /d. Plaintiff was not 5 any prescribed medication for his mental health at the time of the August 15, 2018 ALJ 6 || hearing. (AR 54.) He also testified that his mood was great. (AR 54.) 7 When asked about his day-to-day activities, Plaintiff testified he is “pretty active,” 8 ||and he makes sure to get out of the apartment daily. (AR 55.) Plaintiff is still able to go 9 || outside to run errands. (AR 56.) 10 When questioned by his attorney, Plaintiff testified that even after he stopped eating 11 || gluten, his health is not the same as it used to be. (AR 57.) Plaintiff alleged he tires easily. 12 Because of his Celiac Disease, Plaintiff went back to smoking marijuana, which in turn 13 ||causes him to have depression. (AR 59.) Plaintiff is also mentally affected whenever he 14 ||consumes traces of gluten because he becomes fatigued and spaced out. (AR 60.) 15 || Whenever Plaintiff feels that he is not concentrating very well, he usually takes a nap. Jd. 16 At the hearing, vocational expert Nelly Katsell testified a hypothetical person with 17 || similar limitations to Plaintiff could perform his previous job as a cafeteria attendant. (AR 18 Besides that, someone with Plaintiff's conditions would also be able to be a garment 19 || folder, a counter clerk photo finish, and an airline security representative. (AR 65-66.) 20 D. ALJ’s Findings 21 In his October 19, 2018 decision, the ALJ determined Plaintiff is not disabled under 22 ||sections 216(1), 223(d), and 1614(a)(3)(A) of the Social Security Act. 23 The ALJ ruled Plaintiff meets the insured status requirements of the SSA through 24 December 31, 2017. (AR 15.) At the first step of the sequential analysis, the ALJ found 25 || Plaintiff has not engaged in substantial gainful activity since the alleged onset date of the 26 || disability. Jd. At the second step of the analysis, the ALJ found Plaintiff has the following 27 ||severe impairments: osteoporosis, osteopenia, celiac disease, status post lateral condylar 28 || fracture of right knee, and status post right wrist fracture. (AR 16.) However, the following

1 ||impairments were considered non-severe: callosities on bilateral feet, obstructive sleep 2 ||apnea, chronic obstructive lung disease, chronic liver disease, irritable bowel syndrome, 3 history of alcohol abuse. (AR 16.) Plaintiff also suffers from depression and anxiety, 4 || which “do not cause more than minimal limitation to the claimant’s ability to perform basic 5 |;mental work.” Jd. In arriving at this finding, the ALJ considered the impairments 6 ||individually and in combination with each other. /d. 7 The ALJ applied and considered the four factors set out in the Listing of Impairments 8 ||and found Plaintiff's mental impairments were minimally limited. /d. When applying the 9 function factors under the regulations, the ALJ came to the conclusion that Plaintiff 10 no limitation in interacting with others. /d. The ALJ found Plaintiff had mild 11 |/limitations in the remaining three functioning areas. First, Plaintiff has limitation in 12 |/understanding, remembering, or applying information. /d. Although Plaintiff is able to 13 || follow both written and spoken instructions, his ability to pay attention is limited due to 14 || fatigue. Jd. Second, Plaintiff has a mild limitation in concentrating, persisting, or 15 maintaining pace. /d. Specifically, Plaintiff “has difficulty concentrating when he is tired. 16 However, he is able to perform simple chores; follow simple instructions; and use public 17 ||transportation.” Jd. Third and finally, Plaintiff has mild limitations in adapting or 18 managing oneself. Here, Plaintiff “is able to regulate his emotions in various settings. He 19 able perform simple chores; interact with others; leave his home; handle his finances; 20 shop for personal items.” Jd. Based on these findings, the ALJ concluded, “[b]ecause 21 ||the claimant’s medically determinable mental impairments cause no more than ‘mild’ 22 limitation in any of the functional areas, they are nonsevere.” /d. Hence, Plaintiff “does 23 ||not have an impairment or combination of impairments that meets or medically equals the 24 || severity of one of the listed impairments.” (AR 17.) 25 Next, the ALJ found Plaintiff has residual functional capacity to perform light work 26 ||as defined in sections 20 CFR 404.1567(b) and 416.967(b). Id. Here, the ALJ determined 27 || Plaintiff “is limited to occasional climbing of ramps/stairs . . . [and] can occasionally 28 balance, stoop, kneel, crouch and crawl.” Jd. Plaintiff must also “avoid concentrated

1 ||exposure to extreme cold, extreme heat, vibrations, and hazards such as operation control 2 ||of moving machinery and unprotected heights.” □□□ 3 The ALJ found Plaintiff can perform past relevant work as a cafeteria attendant. (AR 4 ||20.) The ALJ arrived at this finding because Plaintiff “(1) performed the position within 5 ||the last fifteen years .. . (2) performed the position for a sufficient length of time to learn 6 || how to do the job and reach an average performance level .. . and (3) performed the position 7 \|for earnings at a level that constitutes substantial gainful activity.” Jd. Finally, the ALJ 8 found Plaintiff “has not been under a disability as defined in the Social Security Act, from 9 || November 30, 2015, through the date of this decision.” (AR 21.) 10 STANDARD OF REVIEW 11 A district court will not disturb the Commissioner’s decision unless it is based on 12 || legal error or not supported by substantial evidence. Smolen v. Chater, 80 F.3d 1273, 1279 13 Cir. 1996)” (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Substantial 14 ||evidence means more than a scintilla, but less than a preponderance. Jd. Substantial 15 || evidence is that which a reasonable mind would consider enough to support a conclusion. 16 The ALJ is responsible for determining credibility, resolving conflicts in medical 17 ||testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 18 1995). If the evidence is subject to more than one rational interpretation, the ALJ’s 19 |iconclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 20 ||IV. DISCUSSION 21 Plaintiff challenges the ALJ’s unfavorable decision on the grounds that the ALJ’s 22 || finding lacks the support of substantial evidence. In particular, Plaintiff contends the ALJ’s 23 ||reasons for finding a non-severe impairment were insufficient. (Doc. No. 19-1, 5:13-14.) 24 || The Court addresses Plaintiff's arguments below. 25 26 || /// 27 || 28 Smolen has been superseded on other grounds by 20 C.F.R. §§ 416.929, 404.1529(c)(3).

1 A. The ALJ Adequately Provided a Basis for His Finding of a Non-Severe 2 Impairment. 3 Plaintiff contends the ALJ failed to provide an adequate explanation for determining 4 || that Plaintiff's activities showed that he was capable of working. (Doc. No. 19-1, 5:25-26, 5 ||6:1.) Defendant contends the ALJ complied with the regulations and adequately provided 6 ||a basis for his findings. (Doc. No. 21, 3:7-9, 15-16.) 7 The disability regulations for evaluating mental disorders require the ALJ to 8 ||consider four broad areas of mental functions. 20 CFR, Part 404, Subpart P, Appendix 1. 9 || These areas include: 10 (1) understanding, remembering, or applying information; 11 (2) interacting with others; 12 (3) concentrating, persisting, or maintaining pace; and 13 (4) adapting or managing oneself. 14 An ALJ will generally find the impairment to be non-severe if the degree of 15 limitation for any of these areas is “none” or “mild.” § 404.1520a(d)(1). An ALJ is 16 required to “include a specific finding as to the degree of limitation in each of the functional 17 |lareas.” § 404.1520a(e)(4). However, an ALJ is not required to “document the 18 || considerations underlying the findings” in the four broad areas. Hoopai v. Astrue, 499 F.3d 19 1071, 1078 (9th Cir. 2007). 20 Here, the ALJ properly supported each of his determinations in the four functional 21 areas set out by the regulations. The ALJ stated: 22 (1)The first functional area is understanding, remembering, or applying 23 information. In this area, the claimant has a mild limitation. The claimant 24 revealed that he is able to follow both written and spoken instructions. 25 However, he wrote that his ability to pay attention is limited due to fatigue 26 (EX. 5E). 27 (2) The next function area is interacting with others. In this area, the claimant 28 has no limitation. The claimant did not indicate[] that he has difficulty

1 getting along with others. He wrote that he enjoys going to meetings, 2 plays, museums, and concerts. The claimant does not require someone to 3 accompany him outside of his home (EX. 5E). 4 (3) The third functional area is concentrating, persisting, or maintaining pace. 5 In this area, the claimant has a mild limitation. The claimant wrote that he 6 has difficulty concentrating when he is tired. However, he is able to 7 perform simple chores; follow simple instructions; and use public 8 transportation (EX. 5E). 9 (4) The fourth functional area is adapting or managing oneself. In this area, 10 the claimant has a mild limitation. The claimant is able to regulate his 11 emotions in various settings. He is able to perform simple chores; interact 12 with others; leave his home; handle his finances; and shop for personal 13 items. 14 16.) 15 Plaintiff argues the ALJ failed to explain how Plaintiff's ability to engage in certain 16 || activities means that Plaintiff is able to perform unskilled work. (Doc. No. 19-1, 6:22-24.) 17 ||However, here, the ALJ clearly stated a reason for his determination in each of the 18 || functional areas. Specifically, the ALJ reasoned Plaintiff had a mild limitation in the first 19 || functional area because “[he] revealed that he is able to follow both written and spoken 20 |/instructions.” AR 16. The ALJ also acknowledged “[Plaintiff’s] ability to pay attention is 21 ||limited due to fatigue.” Jd. The ALJ explained Plaintiff has no limitation in the second 22 || functional area because “[h]e wrote that he enjoys going to meetings, plays, museums, and 23 ||concerts.” Jd. Next, the ALJ found Plaintiff has a mild limitation in the third functional 24 || area because “[Plaintiff] wrote that he has difficulty when he is tired. However, he 1s able 25 ||to perform simple chores; follow simple instructions; and use public transportation.” Id. 26 ||Further, the ALJ reasoned Plaintiff has a mild limitation in the fourth functional area 27 because “[he] is able to regulate his emotions in various settings. /d. The ALJ added, 28 “Plaintiff is able to perform simple chores; interact with others; leave his home; handle his

1 finances; and shop for personal items.” /d. Hence, the ALJ sufficiently explained his 2 ||reasons for finding a non-severe impairment. Furthermore, an ALJ’s finding as to the four 3 ||functional areas is sufficient “even without a finding “based on all of the enumerated 4 || functional limitations.’” Keyser v. Comm’r SSA, 648 F.3d 721, 726 (9th Cir. 2011) (citing 5 || Hoopai, 499 F.3d at 1077.) Requiring the ALJ to do more than what he has already done 6 || would be contrary to precedent. See id. 7 Additionally, contrary to Plaintiff's assertion, the ALJ explained why he determined 8 || Plaintiff is able to perform light unskilled work. After determining that “[t]he severity of 9 claimant’s physical impairments, considered singly and in combination, does not meet 10 ||or medically equal the criteria of any impairment listing or Social Security Ruling,” the 11 || ALJ then found that Plaintiff “has the residual functional capacity to perform light work as 12 defined in 20 CFR 404.1567(b) and 416.967(b).” (AR 17.) The ALJ made this finding 13 considering “all symptoms and the extent to which these symptoms can reasonably 14 accepted as consistent with the objective medical evidence and other evidence.” /d. 15 || The ALJ reasoned, “[regarding Plaintiff's] activities of daily living, [Plaintiff] admitted to 16 || working at the hospital; cooking simple meals; performing simple chores; and shopping 17 || for personal items. These reported activities of daily living are generally inconsistent with 18 ||the degree of functional limitation alleged.” /d. Finally, the ALJ concluded, “Plaintiff is 19 limited to occasional climbing of ramps/stairs. He can never climb ladders, ropes, or 20 scaffolds. He can occasionally balance, stoop, kneel, crouch and crawl. Further, [Plaintiff] 21 ||must avoid concentrated exposure to extreme cold, extreme heat, vibrations, and hazards 22 as operational control of moving machinery and unprotected heights.” Jd. 23 After determining Plaintiff has the residual capacity to perform light work, the ALJ 24 || specifically found that Plaintiff “is capable of performing past relevant work as a cafeteria 25 ||attendant.” (AR 20.) The ALJ reasoned Plaintiff is unable to perform his past jobs as a 26 || cab driver, driver, and parking lot attendant based on the vocational expert’s testimony. Id. 27 || Thus, the ALJ concluded, “[i]n comparing the claimant’s residual functional capacity with 28 ||the physical and mental demands of this work, the undersigned finds that the claimant is

1 || able to perform it as actually and generally performed. The vocational expert’s testimony 2 consistent with SSR 00-4p, as the positions of ‘cafeteria attendant’ do not require the 3 || performance of any activities precluded by claimant’s residual functional capacity.” Id. 4 || Accordingly, the ALJ sufficiently explained his reason for finding a non-severe impairment 5 for determining that Plaintiff's daily activities show that he is capable of performing 6 || light work as a cafeteria attendant. 7 B. The ALJ’s Finding of a Non-Severe Impairment Is Supported by Substantial 8 Evidence. 9 Plaintiff contends the ALJ erred in singling out a few isolated instances of 10 ||improvement and treating them as a basis for his finding. (Doc. No. 19-1, 7:18-22.) In 11 ||addition, Plaintiff claims the record indicates his inability to engage in competitive 12 ||employment due to situational depression and mental setbacks. Jd. 13 Contrary to Plaintiff's assertion, the ALJ did not rely on “a few isolated instances of 14 ||improvement” when arriving at his decision. (Doc. No. 19-1, 7:23-26.) Although engaging 15 ||in minimal routine activities does not automatically translate to the ability to consistently 16 || work, Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989), a plaintiffs substantial activities 17 ||support a finding that the impairments are non-severe. Castillo v. Berryhill, 693 F. App’x 18 || 659, 660 (9th Cir. 2017) (unpublished). Here, Plaintiff reported going out daily. (AR 317.) 19 || Plaintiff stated that he goes shopping every day for thirty minutes each time. /d. Although 20 || Plaintiff noted that his limited energy and stamina affects his ability to go out, he wrote 21 he attends plays, baseball games, and the grocery stores on a regular basis. (AR 318.) 22 || Additionally, Plaintiff represented he does not need anyone to accompany him at these 23 ||events. Jd. Plaintiff's considerable level of activities cannot be described as something 24 only occur occasionally. 25 Plaintiff asserts the record supports his allegations of decreased energy and stamina 26 || brought on by his depression and anxiety. (Doc. No. 19-1, 7:3-4.) However, although the 27 \|record does indicate instances where Plaintiff was suffering from depression and anxiety, 28 broader picture appears to show Plaintiff's mental health has improved. Additionally,

1 || the mere existence of mental impairment does not automatically mean that Plaintiff suffers 2 a severe impairment. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (noting 3 “the mere existence of an impairment is insufficient proof of a disability.”) Plaintiff 4 supports his claim by noting that on March 20, 2018, he was assessed for suicidal ideation. 5 ||(Doc. No. 19-1, 7:6-8.) However, Plaintiff failed to state that the assessment showed that 6 ||he was negative for suicidal ideation. (AR 710.) In fact, Plaintiff was often assessed for 7 || suicidal ideation; however, the record indicates that the results were negative. (AR 674, 8 710.) Hence, the record indicates that Plaintiff's mental health has largely been stable. 9 Plaintiff's own testimony supports the ALJ’s finding of non-severity. Although 10 || Plaintiff noted at the hearing that he was “a little stressed out,” Plaintiff stated that he was 11 |/not taking any medications for his mental health. (AR 53-54.) He also testified that his 12 ||mood was great, and that people have often told him that he is “too optimistic.” (AR 54.) 13 || Plaintiff also testified that he is “pretty active.” (AR 55.) Plaintiff represented he made 14 ||sure to get out of the apartment every day. /d. Therefore, Plaintiff's own testimony 15 ||contradicts his assertion that the “record portrays an afflicted individual with limited 16 || functional ability, merely making the best of unstable situation.” (Doc. No. 19-1, 8:7-10) 17 Plaintiff's medical record largely shows Plaintiff's mental health has been 18 ||amproving. Plaintiff alleges in his motion for summary judgment he suffers from “severe 19 ||PTSD (fear and flashbacks), extreme anxiety (including an ability to leave his house alone 20 || even for necessities such as food, and loss of work due to being around strangers), irrational 21 || fears/paranoia (someone is watching him, someone always knows information about him 22 ||including his whereabouts and phone number), inability to maintain relationships with 23 ||others, and inability to handle stress (experiences convulsions, cannot think, and breaks 24 ||down).” (Doc. No. 19-1, 8:1-7.) However, it is unclear which medical note Plaintiff based 25 || these assertions on as the pages Plaintiff cites do not indicate those conditions. The Court 26 exhaustively reviewed the administrative record in this litigation, and it has found no 27 28

1 ||evidence supporting Plaintiff’s claims to this end.” 2 Although the record does show that Plaintiff had some trouble with his familial 3 ||relationships, most of these problems occurred before his alleged disability onset date of 4 || November 30, 2015. (AR 583, 606.) Additionally, although the record shows that Plaintiff 5 || occasionally struggled with his emotions, Plaintiff's medical record indicate that beginning 6 ||of April 07, 2017, Plaintiff has been “feeling less anxious overall.” (AR 763, 793, 801, 7 ||810.) Moreover, the record shows that Plaintiff's mood during medical sessions was often 8 ||“euthymic.” (AR 707-885.) Hence, the Court finds that there is substantial evidence to 9 support the ALJ’s determination that Plaintiff's mental impairments are non-severe. 10 C. ‘Plaintiff Is Not Entitled to Summary Judgment. 11 In addition to Plaintiff's summary judgment motion, Defendant’s cross-motion for 12 ||summary judgment is pending before the Court. Defendant contends the ALJ’s finding of 13 ||a non-severe impairment is supported by substantial evidence.* As discussed above, the 14 ||ALJ properly applied the special technique for evaluating mental impairments and the 15 ||record supports the ALJ’s finding of non-severity. For these reasons, this Court DENIES 16 || Plaintiff's MSJ and GRANTS Defendant’s Cross-MSJ. 17 CONCLUSION 18 Based on the foregoing, Plaintiff's MSJ is DENIED and Defendant’s Cross-MSJ is 19 ||GRANTED. The Clerk of Court is instructed to enter judgment accordingly and close the 20 || case. 21 IT IS SO ORDERED. 22 || DATED: March 22, 2021 | Se 23 Hon. William V. Gallo United States Magistrate Judge 25

37 ; Plaintiff has lost credibility with the Court for citing incorrectly to the record. Defendant also contends that even if the ALJ erred in finding a non-severe impairment, the error was 2g || harmless. Having found that the ALJ did not err in his finding, this Court finds no need to address this portion of Defendant’s argument.