1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 NICOLETA S., ) No. CV 20-5365-PLA ) 13 Plaintiff, ) MEMORANDUM OPINION AND ORDER ) 14 v. ) ) 15 ANDREW M. SAUL, COMMISSIONER ) OF SOCIAL SECURITY ) 16 ADMINISTRATION, ) ) 17 Defendant. ) ) 18 19 I. 20 PROCEEDINGS 21 Nicoleta S.1 (“plaintiff”) filed this action on June 16, 2020, seeking review of the 22 Commissioner’s denial of her applications for a period of disability and Disability Insurance 23 Benefits (“DIB”) and Supplemental Security Income (“SSI”) payments. The parties filed Consents 24 to proceed before a Magistrate Judge on July 7, 2020, and July 10, 2020. Pursuant to the Court’s 25 Order, the parties filed a Joint Submission (alternatively “JS”) on February 10, 2021, that 26 27 1 In the interest of protecting plaintiff’s privacy, this Memorandum Opinion and Order uses plaintiff’s (1) first name and last initial, and (2) year of birth in lieu of a complete birth date. See 28 1 addresses their positions concerning the disputed issue in the case. The Court has taken the Joint 2 Submission under submission without oral argument. 3 4 II. 5 BACKGROUND 6 Plaintiff was born in 1976. [Administrative Record (“AR”) at 156, 158.] She has past 7 relevant work experience as a registration clerk. [Id. at 26, 54-55.] 8 On July 13, 2017, plaintiff protectively filed an application for a period of disability and DIB 9 and for SSI payments alleging that she has been unable to work since July 12, 2017. [Id. at 14; 10 see also id. at 156-67, 158-63.] After her applications were denied initially, plaintiff timely filed a 11 request for a hearing before an Administrative Law Judge (“ALJ”). [Id. at 95-97.] A hearing was 12 held on May 31, 2019, at which time plaintiff appeared represented by an attorney, and testified 13 on her own behalf. [Id. at 32-61.] A vocational expert (“VE”) also testified. [Id. at 51-59.] On July 14 2, 2019, the ALJ issued a decision concluding that plaintiff was not under a disability from July 12, 15 2017, the alleged onset date, through July 2, 2019, the date of the decision. [Id. at 14-27.] 16 Plaintiff requested review of the ALJ’s decision by the Appeals Council. [Id. at 152-55.] When the 17 Appeals Council denied plaintiff’s request for review on April 16, 2020 [id. at 1-5], the ALJ’s 18 decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 19 (9th Cir. 2008) (per curiam) (citations omitted). This action followed. 20 21 III. 22 STANDARD OF REVIEW 23 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 24 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 25 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 26 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 27 “Substantial evidence . . . is ‘more than a mere scintilla[,]’ . . . [which] means -- and means 28 only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support a 1 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citations 2 omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptible 3 to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.3d 4 at 654 (internal quotation marks and citation omitted). However, the Court “must consider the 5 entire record as a whole, weighing both the evidence that supports and the evidence that detracts 6 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 7 of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 8 (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ 9 in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” 10 Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 11 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order must 12 be judged are those upon which the record discloses that its action was based.”). 13 14 IV. 15 THE EVALUATION OF DISABILITY 16 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 17 to engage in any substantial gainful activity owing to a physical or mental impairment that is 18 expected to result in death or which has lasted or is expected to last for a continuous period of at 19 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 20 42 U.S.C. § 423(d)(1)(A)). 21 22 A. THE FIVE-STEP EVALUATION PROCESS 23 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 24 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 25 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 26 In the first step, the Commissioner must determine whether the claimant is currently engaged in 27 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 28 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 1 second step requires the Commissioner to determine whether the claimant has a “severe” 2 impairment or combination of impairments significantly limiting her ability to do basic work 3 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 4 a “severe” impairment or combination of impairments, the third step requires the Commissioner 5 to determine whether the impairment or combination of impairments meets or equals an 6 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 7 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 8 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 9 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 10 “residual functional capacity” to perform her past work; if so, the claimant is not disabled and the 11 claim is denied. Id. The claimant has the burden of proving that she is unable to perform past 12 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 13 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 14 the burden of establishing that the claimant is not disabled because there is other work existing 15 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 16 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 17 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue 18 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; 19 Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. 20 21 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 22 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 23 July 12, 2017, the alleged onset date.2 [AR at 17.] He noted that in June 2017, plaintiff returned 24 to part-time work in the third and fourth quarter of 2017, and the first quarter of 2018. [Id. (citations 25 omitted).] He also noted plaintiff’s testimony that while at work she was unable to concentrate, 26 27 2 The ALJ concluded that plaintiff meets the insured status requirements of the Social 28 1 made mistakes, and could not tolerate the pain, and after a few months plaintiff’s supervisor told 2 her that she “could no longer honor [plaintiff’s] accommodations.” [Id. (citations omitted).] Plaintiff 3 then took a medical retirement. [Id. (citation omitted).] The ALJ classified this as an “unsuccessful 4 work attempt” because plaintiff “did not work for several months, attempted to return to work with 5 accommodations for less than six months, and the work ended because of the removal of the 6 accommodations.” [Id.] At step two, the ALJ concluded that plaintiff has the severe impairments 7 of status-post right tibia and right hip fractures post open reduction internal fixation surgery; 8 degenerative disc disease of the lumbar spine; right shoulder injury status-post motor vehicle 9 accident3; and fibromyalgia. [Id.] He found her medically determinable physical impairments of 10 pulmonary embolisms and left carotid artery dissection (also resulting from the accident), and her 11 medically determinable mental impairment of depression, to be nonsevere. [Id.] At step three, 12 the ALJ determined that plaintiff does not have an impairment or a combination of impairments 13 that meets or medically equals any of the impairments in the Listing. [Id. at 20.] The ALJ further 14 found that plaintiff retained the residual functional capacity (“RFC”)4 to perform light work as 15 defined in 20 C.F.R. § 404.1567(b),5 16 3 On November 16, 2016, plaintiff was a passenger in an automobile that was “T-boned” on 17 plaintiff’s side of the vehicle when it was hit by a drunk driver. [AR at 1093.] She was hospitalized 18 for approximately two weeks following the accident, which fractured her right tibia and right hip. [Id. at 22 (citations omitted).] Plaintiff underwent “a right pubic and right tibia open reduction 19 internal fixation surgery,” and was released to a skilled nursing facility on November 25, 2016. [Id.] On December 9, 2016, she was released from the skilled nursing facility. [Id. (citations omitted).] 20 4 RFC is what a claimant can still do despite existing exertional and nonexertional 21 limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps 22 three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 23 1151 n.2 (9th Cir. 2007) (citation omitted). 24 5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this 25 category when it requires a good deal of walking or standing, or when it involves sitting most of the 26 time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. 27 If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 28 1 except standing and walking is limited to four hours in an eight-hour workday. She must be able to alternate between sitting and standing at the workstation and must 2 be able to use a cane as needed for ambulation. [She] is capable of occasional postural activities, but cannot climb ladders, scaffolds or ropes and cannot work at 3 unprotected heights. She is capable of occasional above the shoulder work with the right upper extremity and occasional use of foot pedals or controls with the right 4 lower extremity. 5 [Id. at 21.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded 6 that plaintiff is able to perform her past relevant work as a registration clerk as actually and 7 generally performed. [Id. at 26, 55-57.] Accordingly, the ALJ determined that plaintiff was not 8 disabled at any time from the alleged onset date of July 12, 2017, through July 2, 2019, the date 9 of the decision. [Id. at 27.] 10 11 V. 12 THE ALJ’S DECISION 13 Plaintiff contends that the ALJ erred when he rejected plaintiff’s subjective symptom 14 testimony. [JS at 4.] As set forth below, the Court respectfully disagrees with plaintiff and affirms 15 the decision of the ALJ. 16 17 A. BACKGROUND 18 Plaintiff contends the ALJ failed to articulate legally sufficient reasons for rejecting plaintiff’s 19 subjective symptom testimony. [Id.] 20 The ALJ summarized plaintiff’s testimony as follows: 21 [She] testified she has pain in her back, right shoulder, and right leg and bilateral ankle swelling. She explained that the pain in her right shoulder prevents her from 22 raising her arm above the shoulder level. She further explained that the pain in her back and leg make it difficult to sit and she estimated that she could sit for four to 23 five minutes before needing to stand. She also testified that walking causes pain in her back and right leg, but on a good day, she is able to walk her dog or go to the 24 store. [She] testified that she has a walker and a cane, but she only uses the walker in the house because she is embarrassed to use it in public. She further explained 25 26 5(...continued) 27 20 C.F.R. §§ 404.1567(b), 416.967(b). Light work requires standing or walking, off and on, for a total of approximately six hours of an eight-hour workday. Soc. Sec. Ruling 83-10, 1983 WL 31251, at 28 1 that she uses the cane every day and estimated that she could take approximately two or three steps without it. [She] believes that she is unable to work because she 2 is in constant pain, which makes it difficult to concentrate. Although [plaintiff] has good and bad days, she testified that she has good days only once or twice a week. 3 Plaintiff lives with her four children. She can occasionally start the dishes, but relies 4 on her children to do the household chores and most of the cooking. She also relies on her oldest daughter to help her dress and bathe. She is able to go shopping, but 5 needs to use an electric shopping cart. During the day, [she] rests and tries to prepare food for her children. She explained that she spends most of the day laying 6 down because she can only sit comfortably for approximately ten minutes. [She] watches television and listens to music to pass the time, but she cannot follow along 7 with the television plots. [She] is able to drive short distances. She goes to church on Sunday and has an emotional support dog, but her daughter takes care of the 8 dog. 9 [Id.] 10 The ALJ discounted plaintiff’s subjective symptom testimony as follows: 11 After careful consideration of the evidence, the undersigned finds that [plaintiff’s] medically determinable impairments could reasonably be expected to cause some 12 symptoms; however [her] statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical 13 evidence and other evidence in the record for the reasons explained in this decision. 14 [Id.] 15 16 B. LEGAL STANDARD 17 Prior to the ALJ’s assessment in this case, Social Security Ruling (“SSR”)6 16-3p went into 18 effect. See SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017).7 SSR 16-3p supersedes SSR 96-7p, 19 the previous policy governing the evaluation of subjective symptoms. SSR 16-3p, 2017 WL 20 5180304, at *2. SSR 16-3p indicates that “we are eliminating the use of the term ‘credibility’ from 21 our sub-regulatory policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing so, 22 we clarify that subjective symptom evaluation is not an examination of an individual’s character[;] 23 6 “SSRs do not have the force of law. However, because they represent the Commissioner’s 24 interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 25 n.1 (9th Cir. 2001) (citations omitted). 26 7 SSR 16-3p, originally “effective” on March 28, 2016, was republished on October 25, 2017, 27 with the revision indicating that SSR 16-3p was “applicable [rather than effective] on March 28, 2016.” See 82 Fed. Reg. 49462, 49468 & n.27, 2017 WL 4790249, at *49462 (Oct. 25, 2017); 28 1 [i]nstead, we will more closely follow our regulatory language regarding symptom evaluation.” Id.; 2 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017). Thus, the adjudicator “will not assess 3 an individual’s overall character or truthfulness in the manner typically used during an adversarial 4 court litigation. The focus of the evaluation of an individual’s symptoms should not be to determine 5 whether he or she is a truthful person.” SSR 16-3p, 2017 WL 5180304, at *11. The ALJ is 6 instructed to “consider all of the evidence in an individual’s record,” “to determine how symptoms 7 limit ability to perform work-related activities.” Id. at *2. The Ninth Circuit also noted that SSR 16- 8 3p “makes clear what our precedent already required: that assessments of an individual’s 9 testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the 10 ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably 11 be expected to produce those symptoms,’ and ‘not to delve into wide-ranging scrutiny of the 12 claimant’s character and apparent truthfulness.’” Trevizo, 871 F.3d at 678 n.5 (citing SSR 16-3p). 13 Thus, while SSR 16-3p eliminated the use of the term “credibility,” case law using that term is still 14 instructive in the Court’s analysis. 15 To determine the extent to which a claimant’s symptom testimony must be credited, the 16 Ninth Circuit has “established a two-step analysis.” Trevizo, 871 F.3d at 678 (citing Garrison, 759 17 F.3d at 1014-15). “First, the ALJ must determine whether the claimant has presented objective 18 medical evidence of an underlying impairment which could reasonably be expected to produce the 19 pain or other symptoms alleged.” Id. (quoting Garrison, 759 F.3d at 1014-15); Treichler v. Comm’r 20 of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 21 1028, 1036 (9th Cir. 2007)) (internal quotation marks omitted). If the claimant meets the first test, 22 and the ALJ does not make a “finding of malingering based on affirmative evidence thereof” 23 (Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)), the ALJ must “evaluate the 24 intensity and persistence of [the] individual’s symptoms . . . and determine the extent to which 25 [those] symptoms limit [her] . . . ability to perform work-related activities . . . .” SSR 16-3p, 2017 26 WL 5180304, at *4. In assessing the intensity and persistence of symptoms, the ALJ must 27 consider a claimant’s daily activities; the location, duration, frequency, and intensity of the pain or 28 other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness and side 1 effects of medication taken to alleviate pain or other symptoms; treatment, other than medication 2 received for relief of pain or other symptoms; any other measures used to relieve pain or other 3 symptoms; and other factors concerning a claimant’s functional limitations and restrictions due to 4 pain or other symptoms. 20 C.F.R. § 416.929; see also Smolen v. Chater, 80 F.3d 1273, 1283-84 5 & n.8; SSR 16-3p, 2017 WL 5180304, at *4 (“[The Commissioner] examine[s] the entire case 6 record, including the objective medical evidence; an individual’s statements . . . ; statements and 7 other information provided by medical sources and other persons; and any other relevant evidence 8 in the individual’s case record.”). 9 Where, as here, plaintiff has presented evidence of an underlying impairment, and the ALJ 10 did not make a finding of malingering, the ALJ’s reasons for rejecting a claimant’s subjective 11 symptom statements must be specific, clear, and convincing. Brown-Hunter v. Colvin, 806 F.3d 12 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (citing Molina 13 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)); Trevizo, 871 F.3d at 678 (citing Garrison, 759 14 F.3d at 1014-15); Treichler, 775 F.3d at 1102. “General findings [regarding a claimant’s credibility] 15 are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 16 undermines the claimant’s complaints.” Burrell, 775 F.3d at 1138 (quoting Lester, 81 F.3d at 834) 17 (quotation marks omitted). The ALJ’s findings “‘must be sufficiently specific to allow a reviewing 18 court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and 19 did not arbitrarily discredit a claimant’s testimony regarding pain.’” Brown-Hunter, 806 F.3d at 493 20 (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). A “reviewing court 21 should not be forced to speculate as to the grounds for an adjudicator’s rejection of a claimant’s 22 allegations of disabling pain.” Bunnell, 947 F.2d at 346. As such, an “implicit” finding that a 23 plaintiff’s testimony is not credible is insufficient. Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 24 1990) (per curiam). 25 In determining whether an individual’s symptoms will reduce her corresponding capacities 26 to perform work-related activities or abilities to function independently, appropriately, and 27 effectively in an age-appropriate manner, the ALJ “will consider the consistency of the individual’s 28 own statements.” SSR 16-3p, 2017 WL 5180304, at *8-9; see also Ghanim v. Colvin, 763 F.3d 1 1154, 1163-64 (9th Cir. 2014). In doing so, the ALJ “will compare statements an individual makes 2 in connection with the individual’s claim for disability benefits with any existing statements the 3 individual made under other circumstances.” SSR 16-3p, 2017 WL 5180304, at *8. “If an 4 individual’s various statements about the intensity, persistence, and limiting effects of symptoms 5 are consistent with one another and consistent with the objective medical evidence and other 6 evidence in the record,” the ALJ will determine that an individual’s symptoms are more likely to 7 reduce her capacities for work-related activities or reduce the abilities to function independently, 8 appropriately, and effectively in an age-appropriate manner. Id. at *9. The ALJ will recognize, 9 however, that inconsistencies in an individual’s statements made at varying times “does not 10 necessarily mean they are inaccurate,” as symptoms may vary in their intensity, persistence, and 11 functional effects, or may worsen or improve with time. Id. 12 Here, in discounting plaintiff’s testimony, the ALJ specifically noted the following: (1) 13 plaintiff’s complaints of continuous pain in her right lower extremity are belied by x-rays and 14 physical examinations noting improvement in her condition, and that her leg was healing correctly 15 and her condition improving; (2) plaintiff’s treatment has been conservative, “with some progress 16 noted,” and plaintiff noted that her pain decreased with physical therapy exercises and she 17 believed that her pain management classes were helping; and (3) plaintiff’s “consultative 18 examinations were essentially normal with only minor limitations.” [AR at 22-23.] 19 20 C. THE PARTIES’ CONTENTIONS 21 Plaintiff argues that although the ALJ considered plaintiff’s testimony regarding an inability 22 to concentrate with respect to her physical pain symptoms, he did not consider that testimony with 23 respect to the August 30, 2017, findings of the psychiatric consultative examiner, Norma R. 24 Aguilar, M.D. [id. at 1071-76], and the October 29, 2018, findings of the psychological consultative 25 examiner, Rosa Colonna, Ph.D. [id. at 1092-98]. 26 Specifically, plaintiff notes that although the ALJ considered plaintiff’s physical impairments 27 and treatments in relation to her testimony, he did so by comparing “the neurovascular findings 28 to the complaints of significant pain interfering with concentration, summarizing the medical 1 evidence of treatment prior to July 12, 2017.” [JS at 6-7 (citing AR at 22).] She notes that the ALJ 2 acknowledged that plaintiff used “slow release morphine and oxycodone in the period through 3 June 2017”; that she continued to attend physical therapy and pain management classes in 2018 4 and 2019 and “had some benefit” from those [id. at 7 (citing AR at 23)]; and that he “focused on 5 the results of physical consultative examinations, the suggestion of improvement in the ability to 6 ambulate, [and] the continued need for use of a cane.” [Id. (citing AR at 23).] 7 Plaintiff observes that the ALJ, however, “did not include consideration of the testimony 8 about the inability to engage in the concentration required to perform [plaintiff’s] past semi-skilled 9 work to [Dr. Aguilar’s] findings of digit span recall of three digits forwards and backwards or the 10 inability to spell the word music backwards.” [Id. (emphasis in original) (citing AR at 1075).] She 11 states that the ALJ also did not include Dr. Colonna’s October 2018 mental status examination 12 findings in his assessment “of [plaintiff’s] complaints of inability to concentrate sufficiently to 13 perform past semi-skilled work.” [Id.] She argues that Dr. Colonna’s mental status evaluation 14 reflected a moderate decrease in plaintiff’s “immediate, intermediate, and remote recall,” and a 15 finding that plaintiff’s attention and concentration is “moderately diminished.” [Id. (citing AR at 16 1095).] She points out that Dr. Colonna “diagnosed a pain disorder with physical and 17 psychological factors,” described plaintiff “as having mild limitations in performing detailed 18 instructions and described a capacity for simplistic work-related decision-making without special 19 supervision.” [Id. (citing AR at 1098).] 20 Plaintiff further contends that her past relevant work as a registration clerk requires 21 “reasoning level 3, the ability to perform more complex tasks.” [Id. (citing Dictionary of Occupation 22 Titles (“DOT”) No. 205.367-042).] She argues that the consultative psychiatric examination 23 conducted by Dr. Aguilar and the consultative psychological examination conducted by Dr. 24 Colonna, 25 provide objective support for the testimony that [plaintiff] lacked the concentration to perform work duties as a registration clerk or such other work requiring similar 26 concentration and memory function. The ALJ was uncritical of Drs. Aguilar and Colonna. Because the ALJ did not properly consider [plaintiff’s] testimony in the 27 context of the psychiatric and psychological findings, the ALJ erred [because he did not articulate legally sufficient reasons for rejecting plaintiff’s testimony regarding her 28 inability to concentrate]. 1 [Id. at 8 (citing AR at 18-19); see also AR at 1072-76, 1092-98.] 2 Defendant responds that substantial evidence supports the ALJ’s reasons for discounting 3 plaintiff’s subjective symptom testimony. [JS at 9.] Defendant summarized the ALJ’s statements 4 relating to plaintiff’s treatment and improvement with respect to her (a) fracture of her right tibia 5 and right hip in an automobile accident [id. (citing AR at 22, 328, 337)]; (b) back and leg 6 complaints [id. at 10-11 (citations omitted)]; and (c) conservative treatment for her orthopedic 7 impairments and fibromyalgia. [Id. at 11-12 (citations omitted).] 8 Defendant suggests that plaintiff “does not challenge the ALJ’s articulated rationale for 9 discounting her statements in any way,” but instead “contends that the ALJ should have accepted 10 her testimony that she had difficulty concentrating because that testimony was supported by the 11 opinions of two consultative examiners -- Drs. Aguilar and Colonna.” [Id. at 12 (citing AR at 1072- 12 76, 1092-98).] He argues that the ALJ expressly considered plaintiff’s statements regarding 13 concentration problems at step two, and explained that he found plaintiff “only mildly impaired in 14 that respect due to consistently normal mental status examinations, and Drs. Aguilar and 15 Colonna’s reports.” [Id. (citing AR at 19).] Defendant argues that plaintiff’s failure to address the 16 ALJ’s findings at step two -- that plaintiff’s mental impairments were nonsevere -- amounts to 17 waiver of that issue. [Id. (citing Avenneti v. Barnhart, 456 F.3d 1122, 1125 (9th Cir. 2006)).] 18 Defendant further contends that the two consultative reports “do not support Plaintiff’s 19 statements anyway.” [Id. at 13 (citing AR at 18-19, 1075, 1095, 1097).] He argues that although 20 plaintiff alleges significant concentration defects that affect her ability to work, Dr. Aguilar reported 21 that plaintiff was able to recall three out of three objects immediately and after five minutes; her 22 digit span was 3 digits forward and 3 digits back; she could perform serial sevens; and she could 23 spell the word “music” forward but not backward. [Id. (citing AR at 1075).] Dr. Aguilar found 24 plaintiff had no limitation with respect to following simple or detailed instructions, interacting 25 appropriately with others, and complying with job rules, and only mild limitation with respect to 26 responding to changes and pressures in a usual work setting, and performing activities of daily 27 living. [Id. (citing AR at 1076).] Similarly, Dr. Colonna found plaintiff capable of handling short 28 instructions without difficulty and without special supervision, and opined that she had only mild 1 difficulty with respect to handling detailed instructions, and interacting with others. [Id. (citing AR 2 at 1098).] Although she assessed plaintiff with “moderately diminished memory and attention and 3 concentration,” she also noted that the test results “may be an under estimation of [plaintiff’s] 4 ability at this time.” [Id. (citing AR at 1095, 1097).] 5 With respect to plaintiff’s argument that she is unable to perform her past work as a 6 registration clerk because her concentration deficits render her incapable of doing a job with a 7 reasoning level of 3, defendant argues that the opinions of Dr. Aguilar and Dr. Colonna are 8 “consistent with the ability to perform work at this level.” [Id. at 14 (citing DOT No. 205.367-042).] 9 Additionally, defendant notes that both doctors agreed that plaintiff “had no problem handling short 10 or simple work, without supervision, Dr. Aguilar believed Plaintiff could handle detailed 11 instructions, and Dr. Colonna believed Plaintiff had only mild difficulty in that regard.” [Id.] 12 Defendant concludes, therefore, that plaintiff’s “contention that her concentration deficits would 13 preclude work as a registration clerk is entirely unfounded.” [Id.] 14 Plaintiff responds that the “proper juxtaposition is the ALJ rejection of [plaintiff’s] symptoms 15 and limitations and the ALJ acceptance that [plaintiff] tried to work in the fourth quarter of 2017 16 and first quarter of 2018 but that the attempt failed for reasons related to her impairments.” [Id.] 17 She notes that the ALJ did “not address the unsuccessful work attempt and [plaintiff’s] accepted 18 statements that she could not tolerate the demands of work and the limitations imposed.” [Id.] 19 She suggests that the ALJ made “inconsistent findings accepting the testimony that [plaintiff] could 20 not work without accommodations but the [sic] she could work without accommodations.” [Id.] 21 22 D. ANALYSIS 23 To begin with, and insofar as the Court understands it, plaintiff appears to be arguing in her 24 reply that although the ALJ rejected plaintiff’s subjective symptom testimony, he accepted the fact 25 that in 2017 and 2018 she had an “unsuccessful work attempt” because her impairments and 26 resulting limitations could no longer be accommodated by her employer. According to plaintiff, this 27 resulted in an inconsistency in that the ALJ determined plaintiff was capable of performing her past 28 work, but it was clear from her “unsuccessful work attempt” -- which he acknowledged -- that she 1 was not able to do so. [Id. at 14.] 2 This reply argument, however, was not apparent in plaintiff’s opening statement regarding 3 this issue. To the extent plaintiff is raising a new argument in her reply, her contentions are waived 4 and the Court need not consider them. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 5 1990) (“It is well established in this circuit that the general rule is that appellants cannot raise a 6 new issue for the first time in their reply briefs.”) (citation and internal quotation marks omitted); 7 Thrasher v. Colvin, 611 F. App’x 915, 918 (9th Cir. 2015) (finding Social Security claims waived 8 when raised for the first time in a reply brief) (citing Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 9 1999)); Carter v. Astrue, 413 F. App’x 899, 906 (9th Cir. 2011) (same). Even if the Court were to 10 consider this argument, the ALJ did not find that plaintiff is able to perform her past relevant work 11 with no accommodations -- he in fact determined that plaintiff needs a number of 12 accommodations: she has standing and walking limitations, requires the ability to alternate sitting 13 and standing, must be able to use her cane as needed, can only do occasional postural activities, 14 cannot climb ladders, scaffolds, or ropes, cannot work at unprotected heights, can only do 15 occasional above-the-shoulder work with the right upper extremity, and can only occasionally use 16 foot pedals or controls with the right lower extremity. Plaintiff provides no evidence as to the 17 accommodations her employer had been providing to her, and no evidence that the supervisor’s 18 determination that plaintiff’s limitations could no longer be accommodated had anything at all to 19 do with plaintiff’s ability to concentrate, which is the only issue raised herein. 20 Additionally, the Court finds that the opinions of Drs. Aguilar and Colonna fail to support 21 plaintiff’s arguments. For instance, with respect to memory and concentration, Dr. Aguilar found 22 plaintiff was able to recall three out of three objects immediately and in five minutes, her digit span 23 was three digits forward and backward, she was able to perform serial sevens, and she was able 24 to spell the word “music” forward but not backward. [AR at 1075.] Plaintiff implies that these test 25 results were somehow significant with respect to her purported inability to concentrate, yet, based 26 at least in part on these test results as well as her overall evaluation of plaintiff, Dr. Aguilar 27 nevertheless determined that plaintiff was not functionally limited in her abilities to “follow simple, 28 oral and written instruction,” follow detailed instruction, interact appropriately with the public, co- 1 workers, and supervisors, and comply with job-related rules such as safety and attendance. [Id. 2 at 1076.] Dr. Aguilar also found plaintiff only “mildly limited” in her abilities to respond to changes 3 in a routine work setting, respond to work pressure in a usual work setting, and in performing her 4 daily activities “due to physical problems.” [Id.] As noted by plaintiff, the ALJ was “uncritical” of 5 Dr. Aguilar’s opinion. Plaintiff, however, fails to explain how Dr. Aguilar’s opinion reflects anything 6 more than a mild limitation in concentrating as found by the ALJ at step two or how her opinion 7 supports plaintiff’s allegations of disabling mental impairments. 8 Similarly, Dr. Colonna noted that plaintiff’s mental status evaluation reflected that her 9 attention and concentration were “moderately diminished,” and that her “memory is moderately 10 diminished for immediate, intermediate and remote recall.” [Id. at 1095.] Based on Dr. Colonna’s 11 mental status evaluation, as well as on a number of psychological tests that she administered, Dr. 12 Colonna nevertheless concluded that plaintiff would be able to “understand, remember and carry 13 out short, simplistic instructions without difficulty”; had a mild inability to understand, remember 14 and carry out detailed instructions; and would be able to make simplistic work-related decisions 15 without special supervision. [Id. at 1098.] She also opined that plaintiff presented with a mild 16 mood and affective disturbance that would present in the job market as a “mild inability to interact 17 appropriately with supervisors, coworkers and peers.” [Id.] Again, plaintiff fails to explain how Dr. 18 Colonna’s opinions reflect anything more than a mild limitation in the ability to concentrate as 19 found by the ALJ or how they support plaintiff’s allegations of disabling mental impairments. 20 Plaintiff’s argument that her alleged concentration deficits render her incapable of 21 performing her past work because -- although it does not involve “detailed tasks” -- it requires a 22 reasoning level of 3 and the “ability to perform more complex tasks,” is also unavailing. 23 The DOT defines jobs at Reasoning Level 3 as requiring the ability to “[a]pply 24 commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic 25 form. Deal with problems involving several concrete variables in or from standardized situations.” 26 DOT, app. C. Courts have found that a limitation to “simple tasks performed at a routine or 27 repetitive pace” may be consistent with Reasoning Level 2. See, e.g., Meissl v. Barnhart, 403 F. 28 Supp. 2d 981, 984 (C.D. Cal. May 25, 2005) (“While reasoning level two notes the worker must 1 be able to follow ‘detailed’ instructions, it also . . . downplayed the rigorousness of those 2 instructions by labeling them as being ‘uninvolved.’”). However, “[a]s one goes up the numerical 3 reasoning development scale used by the DOT, the level of detail involved in performing the job 4 increases while the job task becomes less routine.” Id. at 983. Thus, Reasoning Level 3 expands 5 the Reasoning Level 2 requirements of being able to follow “uninvolved” oral or written 6 instructions, to include being able to follow instructions in diagrammatic form as well as oral and 7 written forms, and to deal with “several concrete variables,” as opposed to Level 2’s “few concrete 8 variables.” DOT, app. C (emphasis added). The Ninth Circuit has determined that Reasoning 9 Level 3 is inconsistent with a limitation to simple, routine, or repetitive work tasks. See Zavalin v. 10 Colvin, 778 F.3d 842, 843-44 (9th Cir. 2015) (holding that there is an “apparent conflict” between 11 the “limitation to simple, routine, or repetitive tasks, on the one hand, and the demands of Level 12 3 Reasoning, on the other hand”). 13 Here, however, the ALJ did not limit plaintiff to simple, routine, or repetitive tasks. Neither 14 would such a limitation have been warranted by the record. The opinions of Dr. Aguilar and Dr. 15 Colonna both reflect that plaintiff is capable of performing more detailed tasks: Dr. Aguilar 16 specifically found that plaintiff had no limitation with respect to simple or detailed instructions, and 17 Dr. Colonna found no limitation with respect to simple instructions and only a mild limitation with 18 respect to detailed instructions. 19 Based on the above, plaintiff has failed to identify any error that would warrant remand. 20 / 21 / 22 / 23 / 24 / 25 / 26 / 27 / 28 / 1 Vi. 2 CONCLUSION 3 IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is denied; and (2) the 4| decision of the Commissioner is affirmed. 5 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 7 This Memorandum Opinion and Order is not intended for publication, nor is it intended to 8] be included in or submitted to any online service such as Westlaw or Lexis. ° GSaeKk. Meant DATED: February 19, 2021 PAUL L. ABRAMS 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 47