7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 NANCY ALANIZ, Case No. 1:24-cv-01266-SAB 11 Plaintiff, ORDER AFFIRMING DECISION OF THE 12 COMMISSIONER OF SOCIAL SECURITY v. 13 (ECF Nos. 18, 22) COMMISSIONER OF SOCIAL 14 SECURITY, 15 Defendant.
16 17 Plaintiff Nancy Alaniz (“Plaintiff”) seeks judicial review of a final decision of the 18 Commissioner of Social Security (“Commissioner”) denying her application for disability 19 benefits pursuant to the Social Security Act. The matter is currently before the Court on the 20 parties’ briefs, which were submitted without oral argument. 21 Plaintiff requests the decision of Commissioner be vacated and the case be remanded for 22 further proceedings, arguing that the decision below was not supported by substantial evidence. 23 Specifically, Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in her analysis of 24 Plaintiff’s residual functional capacity with regard to Plaintiff’s mental abilities. 25 For the reasons explained herein, the Court will affirm the decision of the Commissioner. 26 / / / 27 / / / / / / 1 I. 2 BACKGROUND 3 A. Procedural History 4 On December 21, 2021, Plaintiff protectively filed a Title II application for a period of 5 disability and disability insurance benefits, alleging disability beginning November 15, 2021. 6 (ECF No. 12, Administrative Record (“AR”), 30.) Plaintiff’s application was initially denied on 7 June 24, 2022, and denied upon reconsideration on November 14, 2022. (Id.) Plaintiff requested 8 before a hearing before an ALJ. On October 19, 2023, Plaintiff, represented by counsel, appeared 9 for a hearing in front of an ALJ. (Id.) Plaintiff and vocation expert (“VE”) Cheryl Chandler 10 testified. (Id.) On December 19, 2023, the ALJ issued a decision concluding that Plaintiff was 11 not disabled. (AR 42.) On August 26, 2024, the Appeals Council denied Plaintiff’s request for 12 review. (AR 1-5.) 13 B. The ALJ’s Findings of Fact and Conclusions of Law 14 In the decision, the ALJ found that Plaintiff met the insured status requirements of the 15 Social Security Act through December 31, 2026, and that Plaintiff had not engaged in substantial 16 gainful activity since November 15, 2021, the alleged onset date. (AR 33.) The ALJ found that 17 Plaintiff had the following severe impairments: depressive disorder and generalized anxiety 18 disorder. (Id.) However, Plaintiff did not have an impairment or combination of impairments 19 that met or medically equaled the severity of one of the listed in impairments in 20 C.F.R. Part 20 404, Subpart P, Appendix 1. (AR 34.) 21 After considering the entire record, the ALJ found that Plaintiff had the residual functional 22 capacity (“RFC”) to perform a full range of work at all exertional levels but with the following 23 nonexertional limitations: Plaintiff can understand, remember, and carry out simple instructions; 24 she can make simple, work-related decisions; she can deal with occasional changes in routine 25 work setting; she can occasionally interact with supervisors, co-workers, and the public; and she 26 cannot perform requiring a specific production rate, such as work on an assembly line, or work 27 with hourly quotas. (AR 35.) 1 was 54 years old (and turning 55 years old on February 1, 2022), and she had at least a high 2 school education. (AR 41.) The ALJ discussed that transferability of job skills was not material 3 to the determination of disability because using the Medical-Vocational Rules as a framework 4 supported a finding that Plaintiff was “not disabled,” whether or not Plaintiff had transferable job 5 skills. (Id.) Considering Plaintiff’s age, education, work experience, and RFC, the ALJ found 6 that there were jobs that existed in significant numbers in the national economy that Plaintiff 7 could perform. (Id.) Accordingly, the ALJ concluded that Plaintiff had not been under disability, 8 as defined by the Social Security Act, from November 15, 2021, through the date of the decision, 9 December 19, 2023. (AR 42.) 10 Plaintiff sought timely review of the Commissioner’s decision in the federal courts. (ECF 11 No. 1.) The parties consented to the jurisdiction of the United States Magistrate Judge. (ECF 12 Nos. 4, 10, 11.) Thereafter, the parties filed their briefs on the matter. (ECF Nos. 18, 22.) 13 II. 14 LEGAL STANDARD 15 A. The Disability Standard 16 To qualify for disability insurance benefits under the Social Security Act, a claimant must 17 show she is unable “to engage in any substantial gainful activity by reason of any medically 18 determinable physical or mental impairment which can be expected to result in death or which has 19 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 20 423(d)(1)(A). The Social Security Regulations set out a five-step sequential evaluation process to 21 be used in determining whether a claimant is disabled. 20 C.F.R. § 404.1520;1 Batson v. 22 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in the 23 sequential evaluation in assessing whether the claimant is disabled are: 24 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 25
26 1 The regulations which apply to disability insurance benefits, 20 C.F.R. §§ 404.1501 et seq., and the regulations which apply to SSI benefits, 20 C.F.R. §§ 416.901 et seq., are generally the same for both types of benefits. 27 Accordingly, while Plaintiff seeks only Social Security benefits under Title II in this case, to the extent cases cited herein may reference one or both sets of regulations, the Court notes these cases and regulations are applicable to the 1 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or her ability to work? If so, proceed to step three. If not, the claimant is not disabled. 2 Step three: Does the claimant’s impairment, or combination of impairments, meet or 3 equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four. 4 Step four: Does the claimant possess the residual functional capacity (“RFC”) to 5 perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 6 Step five: Does the claimant’s RFC, when considered with the claimant’s age, 7 education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If 8 not, the claimant is disabled. 9 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 10 on the claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). A 11 claimant establishes a prima facie case of qualifying disability once she has carried the burden of 12 proof from step one through step four.
Free access — add to your briefcase to read the full text and ask questions with AI
7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 NANCY ALANIZ, Case No. 1:24-cv-01266-SAB 11 Plaintiff, ORDER AFFIRMING DECISION OF THE 12 COMMISSIONER OF SOCIAL SECURITY v. 13 (ECF Nos. 18, 22) COMMISSIONER OF SOCIAL 14 SECURITY, 15 Defendant.
16 17 Plaintiff Nancy Alaniz (“Plaintiff”) seeks judicial review of a final decision of the 18 Commissioner of Social Security (“Commissioner”) denying her application for disability 19 benefits pursuant to the Social Security Act. The matter is currently before the Court on the 20 parties’ briefs, which were submitted without oral argument. 21 Plaintiff requests the decision of Commissioner be vacated and the case be remanded for 22 further proceedings, arguing that the decision below was not supported by substantial evidence. 23 Specifically, Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in her analysis of 24 Plaintiff’s residual functional capacity with regard to Plaintiff’s mental abilities. 25 For the reasons explained herein, the Court will affirm the decision of the Commissioner. 26 / / / 27 / / / / / / 1 I. 2 BACKGROUND 3 A. Procedural History 4 On December 21, 2021, Plaintiff protectively filed a Title II application for a period of 5 disability and disability insurance benefits, alleging disability beginning November 15, 2021. 6 (ECF No. 12, Administrative Record (“AR”), 30.) Plaintiff’s application was initially denied on 7 June 24, 2022, and denied upon reconsideration on November 14, 2022. (Id.) Plaintiff requested 8 before a hearing before an ALJ. On October 19, 2023, Plaintiff, represented by counsel, appeared 9 for a hearing in front of an ALJ. (Id.) Plaintiff and vocation expert (“VE”) Cheryl Chandler 10 testified. (Id.) On December 19, 2023, the ALJ issued a decision concluding that Plaintiff was 11 not disabled. (AR 42.) On August 26, 2024, the Appeals Council denied Plaintiff’s request for 12 review. (AR 1-5.) 13 B. The ALJ’s Findings of Fact and Conclusions of Law 14 In the decision, the ALJ found that Plaintiff met the insured status requirements of the 15 Social Security Act through December 31, 2026, and that Plaintiff had not engaged in substantial 16 gainful activity since November 15, 2021, the alleged onset date. (AR 33.) The ALJ found that 17 Plaintiff had the following severe impairments: depressive disorder and generalized anxiety 18 disorder. (Id.) However, Plaintiff did not have an impairment or combination of impairments 19 that met or medically equaled the severity of one of the listed in impairments in 20 C.F.R. Part 20 404, Subpart P, Appendix 1. (AR 34.) 21 After considering the entire record, the ALJ found that Plaintiff had the residual functional 22 capacity (“RFC”) to perform a full range of work at all exertional levels but with the following 23 nonexertional limitations: Plaintiff can understand, remember, and carry out simple instructions; 24 she can make simple, work-related decisions; she can deal with occasional changes in routine 25 work setting; she can occasionally interact with supervisors, co-workers, and the public; and she 26 cannot perform requiring a specific production rate, such as work on an assembly line, or work 27 with hourly quotas. (AR 35.) 1 was 54 years old (and turning 55 years old on February 1, 2022), and she had at least a high 2 school education. (AR 41.) The ALJ discussed that transferability of job skills was not material 3 to the determination of disability because using the Medical-Vocational Rules as a framework 4 supported a finding that Plaintiff was “not disabled,” whether or not Plaintiff had transferable job 5 skills. (Id.) Considering Plaintiff’s age, education, work experience, and RFC, the ALJ found 6 that there were jobs that existed in significant numbers in the national economy that Plaintiff 7 could perform. (Id.) Accordingly, the ALJ concluded that Plaintiff had not been under disability, 8 as defined by the Social Security Act, from November 15, 2021, through the date of the decision, 9 December 19, 2023. (AR 42.) 10 Plaintiff sought timely review of the Commissioner’s decision in the federal courts. (ECF 11 No. 1.) The parties consented to the jurisdiction of the United States Magistrate Judge. (ECF 12 Nos. 4, 10, 11.) Thereafter, the parties filed their briefs on the matter. (ECF Nos. 18, 22.) 13 II. 14 LEGAL STANDARD 15 A. The Disability Standard 16 To qualify for disability insurance benefits under the Social Security Act, a claimant must 17 show she is unable “to engage in any substantial gainful activity by reason of any medically 18 determinable physical or mental impairment which can be expected to result in death or which has 19 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 20 423(d)(1)(A). The Social Security Regulations set out a five-step sequential evaluation process to 21 be used in determining whether a claimant is disabled. 20 C.F.R. § 404.1520;1 Batson v. 22 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in the 23 sequential evaluation in assessing whether the claimant is disabled are: 24 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 25
26 1 The regulations which apply to disability insurance benefits, 20 C.F.R. §§ 404.1501 et seq., and the regulations which apply to SSI benefits, 20 C.F.R. §§ 416.901 et seq., are generally the same for both types of benefits. 27 Accordingly, while Plaintiff seeks only Social Security benefits under Title II in this case, to the extent cases cited herein may reference one or both sets of regulations, the Court notes these cases and regulations are applicable to the 1 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or her ability to work? If so, proceed to step three. If not, the claimant is not disabled. 2 Step three: Does the claimant’s impairment, or combination of impairments, meet or 3 equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four. 4 Step four: Does the claimant possess the residual functional capacity (“RFC”) to 5 perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 6 Step five: Does the claimant’s RFC, when considered with the claimant’s age, 7 education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If 8 not, the claimant is disabled. 9 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 10 on the claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). A 11 claimant establishes a prima facie case of qualifying disability once she has carried the burden of 12 proof from step one through step four. 13 Before making the step four determination, the ALJ first must determine the claimant’s 14 RFC. 20 C.F.R. § 416.920(e). The RFC is “the most [one] can still do despite [his or her] 15 limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 16 404.1545(a)(1), 416.945(a)(1). The RFC must consider all the claimant’s impairments, including 17 those that are not severe. 20 C.F.R. §§ 416.920(e); 416.945(a)(2); Social Security Ruling 18 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996).2 “[I]t is the responsibility of the ALJ, not the 19 claimant’s physician, to determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 20 1044, 1049 (9th Cir. 2001); 20 C.F.R. §§ 404.1545(a)(1), 404.1546(c). 21 At step five, the burden shifts to the Commissioner, who must then show that there are a 22 significant number of jobs in the national economy that the claimant can perform given her RFC, 23 age, education, and work experience. 20 C.F.R. § 416.912(g); Lounsburry v. Barnhart, 468 F.3d 24 1111, 1114 (9th Cir. 2006). To do this, the ALJ can use either the Medical Vocational Guidelines 25 (“grids”) or rely upon the testimony of a VE. See 20 C.F.R. § 404 Subpart P, Appendix 2; 26 2 SSRs are “final opinions and orders and statements of policy and interpretations” issued by the Commissioner. 20 27 C.F.R. § 402.35(b)(1). While SSRs do not have the force of law, the Court gives the rulings deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1 Lounsburry, 468 F.3d at 1114; Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 2 “Throughout the five-step evaluation, the ALJ ‘is responsible for determining credibility, 3 resolving conflicts in medical testimony, and for resolving ambiguities.’” Ford, 950 F.3d at 1149, 4 quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 5 B. Standard of Review 6 Congress has provided that an individual may obtain judicial review of any final decision 7 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In 8 determining whether to affirm, modify, or reverse an ALJ’s decision, the Court reviews only 9 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 10 n.13 (9th Cir. 2001). Further, the Court’s review of the Commissioner’s decision is a limited one; 11 the Court may not disturb the Commissioner’s final decision unless it is based on legal error or 12 the findings of fact are not supported by substantial evidence. 42 U.S.C. § 405(g); Reddick v. 13 Chater, 157 F.3d 715, 720 (9th Cir. 1998). “[T]he threshold for such evidentiary sufficiency is 14 not high.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019). Rather, “[s]ubstantial evidence is more 15 than a mere scintilla, and means only such relevant evidence as a reasonable mind might accept as 16 adequate to support a conclusion.” Stiffler v. O’Malley, 102 F.4th 1102, 1106 (9th Cir. 2024), 17 quoting Ford, 950 F.3d at 1154. In other words, “[s]ubstantial evidence is relevant evidence 18 which, considering the record as a whole, a reasonable person might accept as adequate to support 19 a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), quoting Flaten v. Sec’y of 20 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). 21 Should the ALJ err, the Court will not reverse where the error was harmless. Stout, 454 22 F.3d at 1055-56. “An error is harmless only if it is ‘inconsequential to the ultimate nondisability 23 determination.’” Leach v. Kijakazi, 70 F.4th 1251, 1255 (9th Cir. 2023), quoting Lambert v. 24 Saul, 980 F.3d 1266, 1278 (9th Cir. 2020). The burden of showing that an error is not harmless 25 “normally falls upon the party attacking the agency’s determination.” Molina v. Astrue, 674 F.3d 26 1104, 1111 (9th Cir. 2012), quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 27 Finally, “a reviewing court must consider the entire record as a whole and may not affirm 1 1159 (9th Cir. 2012), quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 2 Nor may the Court affirm the ALJ on a ground upon which he or she did not rely; rather, the 3 Court may review only the reasons stated by the ALJ in his decision. Orn v. Astrue, 495 F.3d 4 625, 630 (9th Cir. 2007); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). It is 5 not this Court’s function to second guess the ALJ’s conclusions and substitute the Court’s 6 judgment for the ALJ’s; rather, if the evidence “is susceptible to more than one rational 7 interpretation, it is the ALJ’s conclusion that must be upheld.” Ford, 950 F.3d at 1154, quoting 8 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 9 III. 10 DISCUSSION AND ANALYSIS 11 Plaintiff argues that the ALJ erred by finding the opinion of state psychological 12 consultative examiner Christopher Cooper, Ph.D., persuasive yet not translating certain moderate 13 limitation findings from Dr. Copper into the RFC as it pertains to Plaintiff’s mental abilities. (ECF 14 No. 18, pp. 5-13.) The Commissioner opposes, arguing that the ALJ necessarily must have been 15 using a certain definition of “moderate” when discussing the Dr. Copper’s opinion. (ECF No. 22, 16 pp. 3-4.) The Commissioner also argues that because Dr. Cooper did not specify the functional 17 limitations of the moderate limitations he found, any error would have been harmless. (Id. at pp. 18 4-5.) 19 The Court finds that neither party has correctly framed the issue in this case. As explained 20 below, the Court observes that the ALJ found two medical opinions persuasive that had differing 21 levels of mental abilities discussed regarding Plaintiff. Thus, with two competing opinions, the 22 Court finds that the ALJ discharged her duty by unambiguously relying on one medical opinion 23 over the other—a function that is within the everyday province of the ALJ. And while the 24 evidence might be susceptible to more than one rational interpretation, under judicial review the 25 Court is required to uphold the ALJ’s conclusion. Ford, 950 F.3d at 1154. 26 When an ALJ calculates a claimant’s RFC, the ALJ is tasked with determining “the 27 individual’s maximum remaining ability to do sustained work activities in an ordinary work setting 1 individual’s abilities on that basis.” SSR 96-8p, 1996 WL 374184, at *2 (emphasis in original). In 2 other words, the “RFC does not represent the least an individual can do despite his or her 3 limitations or restrictions, but the most.” Id. (emphasis in original). An ALJ assesses an RFC 4 “based on all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). This 5 includes “any statements . . . provided by medical sources, whether or not they are based on formal 6 medical examinations,” as well as reviewing any “consultative examination(s)” and, where 7 applicable, prior administrative medical findings (“PAMFs”). Id. 8 Under the Social Security Administration’s 2017 revised regulations, “there is not an 9 inherent persuasiveness to evidence from [government consultants] over [a claimant’s] own 10 medical source(s), and vice versa.” Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022), quoting 11 Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844, 2017 12 WL 168819 (F.R. Jan. 18, 2017). “The most important factors” that the agency considers when 13 evaluating the persuasiveness of medical opinions are “supportability” and “consistency.” Id., 14 quoting 20 C.F.R. § 404.1520c(a). Supportability means the extent to which a medical source 15 supports the medical opinion by explaining the “relevant . . . objective medical evidence.” 20 16 C.F.R. § 404.1520c(c)(1); 20 C.F.R. § 416.920c(c)(1). Consistency means the extent to which a 17 medical opinion is “consistent . . . with the evidence from other medical sources and nonmedical 18 sources in the claim.” 20 C.F.R. § 404.1520c(c)(2); 20 C.F.R. § 416.920c(c)(2). With that said, it 19 remains for “the ALJ to determine credibility, resolve conflicts in the testimony, and resolve 20 ambiguities in the record.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020), quoting 21 Treichler, 775 F.3d at 1098. 22 Recall that the ALJ crafted Plaintiff’s RFC as follows: Plaintiff had the RFC to perform a 23 full range of work at all exertional levels but with the following nonexertional limitations: 24 Plaintiff can understand, remember, and carry out simple instructions; she can make simple, work- 25 related decisions; she can deal with occasional changes in routine work setting; she can 26 occasionally interact with supervisors, co-workers, and the public; and she cannot perform 27 requiring a specific production rate, such as work on an assembly line, or work with hourly quotas. 1 As relevant here, in support of this RFC determination, the ALJ discussed the opinion of 2 psychological consultative examiner Dr. Cooper, as well as an opinion from J. Leizer, Ph.D., and 3 N. Haroun, MD, who reviewed the medical record. (AR 38-39.) In particular, Plaintiff highlights 4 the following findings from Dr. Cooper. First, Dr. Cooper opined that Plaintiff could “understand, 5 remember and carry out short simplistic one-two-step instructions with mild difficulty.” (AR 39.) 6 “[Plaintiff] would have moderate difficulty complying with day-to-day work activities including 7 attendance and safety.” (Id.) “[Plaintiff] would have moderate difficulty performing work 8 activities without special or additional supervision . . . . This opinion is persuasive and is 9 supported by the instant examination findings. It is also consistent with the other evidence or 10 record . . . .” (Id.) 11 In an effort of completeness, the Court quotes the ALJ’s discussion in full regarding the 12 opinion of Drs. Leizer and Haroun. 13 J. Leizer, PhD, and N. Haroun, MD, reviewed the evidence of record and opined that the claimant could perform short and simple 14 job instructions, make simple work-related decisions and meet simple production standards that do not involve fast pace work or 15 strict production quotas. The client was able to adapt to simple and infrequent changes and stresses in a work setting, and was able 16 to avoid normal hazards (Exhibits 1A/14-17; 3A/13-16). Their findings with regards to completing simple job instructions and for 17 no fast based work, to reduce stress, are persuasive, as they are supported by a logical narrative after their review of the objective 18 evidence of record. Additionally, they are consistent with the claimant’s admitted activities, lack of psychological emergencies, 19 and improvement in her mental health symptoms with the cessation of drinking and compliance with psychotropic 20 medications. For instance, the claimant described a broad range of activities at the hearing, including helping take care of her 21 grandchildren, picking one grandson up from school, gardening, washing dishes, washing clothes, cooking, shopping in Walmart 22 when it is not crowded, reading the Bible, and completing crossword puzzles on her phone. Together, these activities show 23 that the claimant would be capable of completing simple instructions, and perform work without strict production quotas. 24 (AR 38.) 25 Thus, the ALJ found both opinions persuasive, citing the record in support thereof— 26 notwithstanding that the opinion of Dr. Cooper was narrower and the opinion of Drs. Leizer and 27 Haroun was broader in certain regards. Although the ALJ was required to explain why 1 “significant probative evidence has been rejected,” Vincent ex rel. Vincent, 739 F.2d 1393, 1395 2 (9th Cir. 1984) (per curiam) (internal quotation marks and citation omitted), here, the ALJ did not 3 reject the Dr. Cooper’s opinion; rather, it appears she resolved a conflict in the medical testimony. 4 As outlined above, Dr. Cooper opined that Plaintiff could carry out one-two-step instruction; she 5 would have moderate difficulty complying with day-to-day work activities including attendance 6 and safety; and she would have moderate difficulty performing work activities without special or 7 additional supervision. Meanwhile, Drs. Leizer and Haroun opined that Plaintiff could perform 8 short and simple job instructions, make simple work-related decisions and meet simple production 9 standards that do not involve fast pace work or strict production quotas; and Plaintiff could adapt 10 to simple and infrequent changes and stresses in a work setting, as well as avoid normal hazards, 11 which is entirely consistent with the RFC. Because both opinions speak to how Plaintiff could 12 perform in a work setting, the Court finds that the ALJ’s decision to adopt the broader limitations 13 was reasonable. See 20 C.F.R. §§ 404.1545(a), 416.945(a) (noting an RFC represents the most a 14 claimant can do, not the least). Therefore, “the ALJ’s conclusion must be upheld.” Woods, 32 15 F.4th at 788, quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also Dunn v. 16 O’Malley, No. 23-55707, 2024 WL 3439583 (9th Cir. July 17, 2024) (mem.). 17 Though Plaintiff has provided a wealth of caselaw in support of her position, the Court 18 finds it to either be inapposite or not persuasive. See, e.g., Slover v. Kijakazi, No. 1:21-cv-01089- 19 ADA-BAM, 2023 WL 5488416, at *3-*5 (E.D. Cal. Aug. 24, 2023) (finding that the ALJ erred 20 when it did not incorporate a moderating limitation finding that was in two persuasive opinions); 21 Donald J. M. v. O’Malley, No. 22-cv-1926-MMP, 2024 WL 1342573, at *14-*15 (S.D. Cal. Mar. 22 29, 2024) (finding the ALJ erred where it did not incorporate a persuasive finding from one 23 medical opinion into the RFC); Jeremy S. v. O’Malley, No. 23-cv-00184-AJB-JLB, 2024 WL 24 343179, at *21-*22 (S.D. Cal. Jan. 29, 2024) (same with multiple findings not incorporated); 25 Panziera v. Berryhill, No. 17-cv-02719-LHK, 2018 WL 278623, at *20-*21 (N.D. Cal. Jan. 3, 26 2018) (same and under the pre-2017 amendment interpretation regarding the evaluation of medical 27 opinions, including the treating physician’s rule). To be sure, this might have been a different case 1 incorporated into the RFC, but that is not the case at bar. 2 Finally, and in any event, the Court agrees with the Commissioner that even if the ALJ 3 erred, any error would have been harmless. (ECF No. 22, pp. 3-4.) An error is harmless where it 4 is “inconsequential to the [ALJ’s] ultimate nondisability determinations.” Tommasetti v. Astrue, 5 533 F.3d 1035, 1038 (9th Cir. 2008) (quotation and citation omitted). The burden of showing that 6 an error is not harmless “normally falls upon the party attacking the agency’s determination.” 7 Shinseki v. Sanders, 556 U.S. 396, 409 (2009). Here, the Court observes that outside of Dr. 8 Cooper’s opinion that Plaintiff could perform one-two-step instructions, the other limitations did 9 not include useful statements regarding the degree of Plaintiff’s limitations. For example, though 10 Dr. Cooper opined that Plaintiff would have “moderate difficult complying with day-to-day work 11 activities including attendance and safety,” (AR 39), Dr. Cooper did not elaborate on how many 12 days a week or month Plaintiff might be absent or what aspects of safety in a workplace with 13 which Plaintiff would have moderate limitations. The same is true regarding Dr. Cooper’s opinion 14 that Plaintiff would have moderate difficulty performing work activities without special or 15 additional supervision. The Ninth Circuit has agreed with the Commissioner that descriptions of 16 “[a plaintiff’s] ability to perform in the workplace as ‘limited’ or ‘fair’ were not useful because 17 they failed to specify [the plaintiff’s] functional limits. Therefore, the ALJ could reasonably 18 conclude these characterizations were inadequate for determining RFC.” Ford v. Saul, 950 F.3d 19 1141, 1156 (9th Cir. 2020). Because Dr. Cooper’s opinions regarding attendance, safety, and 20 supervision did not provide useful statements regarding the degree of Plaintiff’s limitations, along 21 with the fact that the ALJ found the opinion of Drs. Leizer and Haroun persuasive and 22 unambiguously relied upon it, the Court finds that any error regarding these limitations identified 23 by Dr. Cooper would have been harmless.3 24 / / / 25 3 With regard to the ALJ relying on the broader opinion between Dr. Cooper and Drs. Leizer and Haroun regarding 26 Plaintiff’s ability to perform one-two-step instructions and short and simple job instructions, the Court observers that the Ninth Circuit recently countenanced a decision where the ALJ found two opinions of state consultative 27 examiners persuasive that opined that the plaintiff could perform both simple and one-to-two step tasks, and the ALJ adopted the broader limitation. Dunn, 2024 WL 3439583 at *2. In light of Dunn, the Court strains to find that the 1 IV. 2 CONCLUSION AND ORDER 3 For the foregoing reasons, IT IS HEREBY ORDERED that the decision of the 4 | Commissioner of Social Security is AFFIRMED. It is FURTHER ORDERED that judgment be 5 | entered in favor of Defendant Commissioner of Social Security and against Plaintiff Nancy 6 | Alaniz. The Clerk of the Court is directed to CLOSE this action. 7 8 IT IS SO ORDERED. FA. Be 9 | Dated: _ January 28, 2026 : STANLEY A. BOONE 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28