Puthuff v. Commissioner of Social Security

• Court: District Court, N.D. California
• Decided: September 26, 2022
• Docket: 5:21-cv-00792
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 D.L.P., Case No. 21-cv-00792-VKD

9 Plaintiff, ORDER RE CROSS-MOTIONS FOR 10 v. SUMMARY JUDGMENT

11 KILOLO KIJAKAZI, Re: Dkt. Nos. 31, 32 Defendant. 12

13 14 Plaintiff D.L.P.1 appeals a final decision of the Commissioner of Social Security 15 (“Commissioner”)2 denying his application for supplemental security income (“SSI”) under Title 16 XVI of the Social Security Act (“Act”), 42 U.S.C. § 1381, et seq. D.L.P. contends that the ALJ 17 erred by failing to consider his mild mental limitations and medication side effects in determining 18 his residual functional capacity (“RFC”) and in finding that he could return to his past relevant 19 work as a jeweler. 20 The parties have filed cross-motions for summary judgment. The matter was submitted 21 without oral argument. Upon consideration of the moving and responding papers and the relevant 22 evidence of record, for the reasons set forth below, the Court denies D.L.P.’s motion for summary 23 24 1 Because orders of the Court are more widely available than other filings, and this order contains 25 potentially sensitive medical information, this order refers to the plaintiff only by his initials. This order does not alter the degree of public access to other filings in this action provided by Rule 26 5.2(c) of the Federal Rules of Civil Procedure and Civil Local Rule 5-1(c)(5)(B)(i).

27 2 Pursuant to Federal Rule of Civil Procedure 25(d), Kilolo Kijakazi, Acting Commissioner of 1 judgment and grants the Commissioner’s cross-motion for summary judgment.3 2 I. BACKGROUND 3 Born in 1959, D.L.P. completed the eleventh grade in high school and worked for over 4 thirty years as a jeweler. See AR4 379, 405, 435. 5 D.L.P. protectively filed his SSI application in March 2018, alleging that he has been 6 disabled and unable to work since March 9, 2018 due to back pain. See AR 288, 379-85, 404. His 7 application was denied initially and on reconsideration. AR 287-311. An ALJ held a hearing on 8 December 16, 2019, at which a vocational expert (“VE”) testified. AR 250-86. 9 On May 5, 2020, the ALJ issued an unfavorable decision. AR 17-36. He found that 10 D.L.P. has not engaged in substantial gainful activity since the March 9, 2018 SSI application 11 date. He further found that D.L.P. has degenerative disc disease of the cervical and lumbar spine, 12 and that the impairment is severe. AR 22. However, the ALJ concluded that D.L.P. does not have 13 an impairment or combination of impairments that meets or medically equals the severity of one 14 of the impairments listed in the Commissioner’s regulations. AR 25. Additionally, the ALJ found 15 that D.L.P.’s medically determinable mental impairments cause no more than mild functional 16 limitations, do not cause more than minimal limitation in his ability to perform basic mental work 17 activities, and are not severe. AR 23, 25. The ALJ determined that D.L.P. has the RFC to 18 perform light work, except that he has additional postural limitations and can occasionally climb 19 ramps and stairs, but never climb ladders, ropes, or scaffolds, and can occasionally stoop, kneel, 20 crouch, and crawl. Id. The ALJ further found that D.L.P. is capable of performing his past 21 relevant work as a jeweler and that this work does not require the performance of work-related 22 activities precluded by D.L.P.’s RFC. AR 30. Accordingly, the ALJ concluded that D.L.P. has 23 not been disabled as defined by the Act since the March 9, 2018 date of his SSI application. Id. 24 The Appeals Council denied D.L.P.’s request for review of the ALJ’s decision. AR 1-7. 25

26 3 All parties have expressly consented that all proceedings in this matter may be heard and finally adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 7, 8. 27 1 D.L.P. then filed the present action seeking judicial review of the decision denying his SSI 2 application. 3 II. LEGAL STANDARD 4 Pursuant to 42 U.S.C. § 405(g), this Court has the authority to review the Commissioner’s 5 decision to deny benefits. The Commissioner’s decision will be disturbed only if it is not 6 supported by substantial evidence or if it is based upon the application of improper legal 7 standards. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citation omitted); Morgan v. 8 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (citation omitted). In this context, 9 the term “substantial evidence” means “more than a mere scintilla” but “less than a 10 preponderance” and is “such relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” Ahearn, 988 F.3d at 1115 (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 12 1154 (2019) and Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012), superseded by 13 regulation on other grounds); see also Morgan, 169 F.3d at 599 (citation omitted). When 14 determining whether substantial evidence exists to support the Commissioner’s decision, the Court 15 examines the administrative record as a whole, considering adverse as well as supporting 16 evidence. Ahearn, 988 F.3d at 1115 (citation omitted); Hammock v. Bowen, 879 F.2d 498, 501 17 (9th Cir. 1989). Where evidence exists to support more than one rational interpretation, the Court 18 must defer to the decision of the Commissioner. Ahearn, 988 F.3d at 1115-16 (citation omitted); 19 Morgan, 169 F.3d at 599 (citation omitted). 20 III. DISCUSSION 21 A. Mental Impairments 22 At step two of the sequential analysis, the ALJ found that D.L.P. has medically 23 determinable mental impairments of major depressive disorder and alcohol use disorder, which 24 cause mild limitations in the four broad areas of mental functioning described in regulations for 25 evaluating mental impairments, known as the “paragraph B” criteria: understanding, 26 remembering, or applying information; interacting with others; concentrating, persisting, or 27 maintaining pace; and adapting or managing oneself. See AR 25; see also 20 C.F.R. § 416.920a 1 determinable mental impairments cause no more than ‘mild’ limitation in any of the functional 2 areas,” the ALJ found that the impairments “do not cause more than minimal limitation in [his] 3 ability to perform basic mental work activities” and “are non-severe.” AR 23, 25. At the 4 administrative hearing, the ALJ posed several hypotheticals to the VE, one of which included a 5 limitation to “simple, routine, repetitive task[s].” AR 283. In response, the VE confirmed that 6 D.L.P.’s past relevant work could not be performed and there would be no transferrable skills. 7 AR 283-84. In concluding that D.L.P. is not disabled, the ALJ relied on a different hypothetical 8 for which the VE testified that a person of D.L.P.’s age, education, and work experience who is 9 limited to light work with additional postural limitations could perform D.L.P.’s past relevant 10 work as a jeweler. AR 25, 283. 11 D.L.P. does not challenge the finding that his mental impairments are mild, do not cause 12 more than minimal limitation in his ability to perform basic mental work activities, and are not 13 severe. He contends that the ALJ erred by failing to consider and include the mild mental 14 limitations in the RFC assessment and by relying on a hypothetical question that did not account 15 for such limitations. The VE testified that under the Dictionary of Occupational Titles, a jeweler 16 performs skilled work. AR 283. D.L.P. submits that the ALJ’s alleged error is material, positing 17 that even a mild mental impairment “may have an impact on the ability to perform the highly 18 skilled and corroborative job of a jeweler.” Dkt. No. 31 at 7.5 19 In assessing a claimant’s RFC, an ALJ must consider all of the claimant’s limitations, 20 including those that are not severe. See 20 C.F.R. § 416.945(a)(2) (“We will consider all of your 21 medically determinable impairments of which we are aware, including your medically 22 determinable impairments that are not ‘severe,’ . . . when we assess your residual functional 23 capacity.”); id. § 416.945(e) (“When you have a severe impairment(s), but your symptoms, signs, 24 and laboratory findings do not meet or equal those of a listed impairment in appendix 1 of subpart 25 P of part 404 of this chapter, we will consider the limiting effects of all your impairment(s), even 26 those that are not severe, in determining your residual functional capacity.”); see also Social 27 1 Security Ruling (“SSR”) 96-8p, 1996 WL 374184 at *5 (“In assessing RFC, the adjudicator must 2 consider limitations and restrictions imposed by all of an individual’s impairments, even those that 3 are not ‘severe.’”). 4 The limitations identified in the paragraph B criteria “are not an RFC assessment but are 5 used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation 6 process.” SSR 96-8p, 1996 WL 374184 at *5. “The mental RFC assessment used at steps 4 and 5 7 of the sequential evaluation process requires a more detailed assessment by itemizing various 8 functions contained in the broad categories found in paragraph[] B . . . of the adult mental 9 disorders listings in 12.00 of the Listing of Impairments . . ..” Id.; see also 20 C.F.R. Pt. 404, 10 Subpt. P, App. 1, § 12.00E (providing examples illustrating the nature of each of the four broad 11 function categories). “While these regulations require the ALJ to consider the effect of all 12 plaintiff’s impairments in formulating the RFC, they do not require him to translate every non- 13 severe impairment into a functional limitation in the RFC.” Rania v. Kijakazi, No. 2:20-cv-01541 14 MCE CKD (SS), 2021 WL 5771663, at *3 (E.D. Cal. Dec. 6, 2021), report and recommendation 15 adopted, 2022 WL 95228 (E.D. Cal. Jan. 7, 2022); see also Medlock v. Colvin, No. CV 15-9609- 16 KK, 2016 WL 6137399, at *5 (C.D. Cal. Oct. 20, 2016) (“Consideration of ‘the limiting effects of 17 all impairments’ does not necessarily require the inclusion of every impairment into the final RFC 18 if the record indicates the non-severe impairment does not cause a significant limitation in the 19 plaintiff’s ability to work.”). “Provided the ALJ does not rely on boilerplate language, but 20 actually reviews the record and specifies reasons supported by substantial evidence for not 21 including the non-severe impairment, the ALJ has not committed legal error.” Medlock, 2016 WL 22 6137399 at *5. 23 Relying on Hutton v. Astrue, 491 F. App’x 850 (9th Cir. 2012), D.L.P. argues that at step 24 four of the sequential analysis, the ALJ should have performed a more detailed evaluation of his 25 mental impairments in determining his RFC and should not have relied on a hypothetical that did 26 not include limitations based on those impairments. See Dkt. No. 31 at 5-8; Dkt. No. 34 at 7. In 27 Hutton, the ALJ determined at step two that the claimant’s post-traumatic stress disorder 1 not severe. Id. at 850. In determining the claimant’s RFC, however, the ALJ excluded the 2 claimant’s PTSD from consideration altogether, finding that the claimant lacked credibility and 3 that “his PTSD claims were in ‘great doubt.’” Id. at 850-51. The Ninth Circuit held that this 4 constituted reversible error. Although the ALJ was free to discount the claimant’s testimony, the 5 ALJ could not ignore his own findings that the claimant’s non-severe PTSD caused mild 6 limitations in the areas of concentration, persistence, or pace. Id. 7 Hutton is inapposite. In the present case, unlike Hutton, the record shows that the ALJ 8 reviewed the evidence (including medical records, opinions, statements, and testimony) and 9 explained his findings regarding various functions within each of the four broad paragraph B 10 criteria in determining D.L.P.’s RFC. For example, in finding that D.L.P. has mild limitations in 11 understanding, remembering, or applying information,6 the ALJ acknowledged D.L.P.’s alleged 12 difficulty in completing tasks, but correctly noted that D.L.P. “also stated that he could perform 13 simple maintenance, prepare meals, go to doctor’s appointments, take medications, take public 14 transportation, shop, and read” and that the record demonstrated D.L.P.’s ability “to provide 15 information about his health, describe his prior work history, and respond to questions.” AR 24 16 (citing AR 250-286, 422-434, 1338-1348). In discussing D.L.P.’s mild limitations in interacting 17 with others,7 the ALJ explained that while D.L.P. alleged difficulty in engaging in social activities, 18 D.L.P.’s statements demonstrated that he “is also able to shop, attend church, take public 19

20 6 “This area of mental functioning refers to the abilities to learn, recall, and use information to perform work activities. Examples include: Understanding and learning terms, instructions, 21 procedures; following one- or two-step oral instructions to carry out a task; describing work activity to someone else; asking and answering questions and providing explanations; recognizing 22 a mistake and correcting it; identifying and solving problems; sequencing multi-step activities; and using reason and judgment to make work-related decisions.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, 23 § 12.00E.1. The Commissioner does not require documentation of all of the listed examples. Id.

24 7 “This area of mental functioning refers to the abilities to relate to and work with supervisors, co- workers, and the public. Examples include: cooperating with others; asking for help when 25 needed; handling conflicts with others; stating own point of view; initiating or sustaining conversation; understanding and responding to social cues (physical, verbal, emotional); 26 responding to requests, suggestions, criticism, correction, and challenges; and keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness.” 20 27 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00E.2. The Commissioner does not require documentation 1 transportation, deal appropriately with authority, and live with others.” Id. (citing 250-286, 422- 2 434, 1343-1348). Additionally, the ALJ observed that medical records showed that D.L.P. “had a 3 good rapport with providers, was described as friendly and cooperative, and appeared comfortable 4 during appointments.” Id. (citing AR 1338-1348). With respect to the functional ability to 5 concentrate, persist, or maintain pace,8 the ALJ noted D.L.P.’s contention that he has limitations in 6 concentrating, but also correctly observed that D.L.P. “said that he is also able to prepare meals, 7 watch television, read, manage funds, use the internet, handle his own medical care, and attend 8 church.” AR 25 (citing AR 250-286, 422-434, 1343-1348). As for the ability to adapt or manage 9 oneself,9 the ALJ noted D.L.P.’s assertion that he has difficulty managing his mood, but correctly 10 observed that D.L.P. “also stated that he is able to handle self-care and personal hygiene,” and that 11 objective evidence showed that he “has appropriate grooming and hygiene, no problem getting 12 along well with providers and staff, and no problems with temper control.” Id. (citing AR 422- 13 434, 1338-1348). 14 The ALJ also considered and discussed the medical evidence and opinions relating to 15 D.L.P.’s mental impairments. See 20 C.F.R. § 416.945(a)(3) (stating that RFC is assessed “based 16 on all of the relevant medical and other evidence[.]”). He found that D.L.P.’s major depressive 17 disorder was effectively managed with a period of medication and therapy sessions, resulting in a 18 finding of full remission as of September 2019, and that with the exception of a one-time relapse 19

20 8 “This area of mental functioning refers to the abilities to focus attention on work activities and stay on task at a sustained rate. Examples include: Initiating and performing a task that you 21 understand and know how to do; working at an appropriate and consistent pace; completing tasks in a timely manner; ignoring or avoiding distractions while working; changing activities or work 22 settings without being disruptive; working close to or with others without interrupting or distracting them; sustaining an ordinary routine and regular attendance at work; and working a full 23 day without needing more than the allotted number or length of rest periods during the day.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00E.3. The Commissioner does not require documentation 24 of all of the listed examples. Id.

25 9 This area of mental functioning refers to the abilities to regulate emotions, control behavior, and maintain well-being in a work setting. Examples include: Responding to demands; adapting to 26 changes; managing your psychologically based symptoms; distinguishing between acceptable and unacceptable work performance; setting realistic goals; making plans for yourself independently 27 of others; maintaining personal hygiene and attire appropriate to a work setting; and being aware 1 in October 2019, D.L.P. testified at the administrative hearing that he had been sober for about a 2 year. AR 23 (citing AR 250-286, 1343-1348, 1612, 1646-1727). With respect to the opinion 3 evidence relating to D.L.P.’s mental impairments, the ALJ found persuasive the November 2018 4 opinion of state agency consultant Dr. Jill Rowan, Ph.D., who reviewed D.L.P.’s medical records 5 and opined that he does not have a severe mental impairment. AR 23, 305. The ALJ found Dr. 6 Rowan’s opinion consistent with evidence of record as a whole, including D.L.P.’s improvement 7 with treatment, his ability to deal with stress and changes in routine, and his ability to maintain 8 activities of daily living. AR 23 (citing 422-434, 1344). Additionally, the ALJ noted state agency 9 consultants’ expertise “in Social Security disability programs and the evaluation of medical issues 10 in disability claims under the Act,” and the fact that Dr. Rowan’s opinion is based on an 11 independent review of D.L.P.’s records and concerns a matter within her field of medical 12 expertise. AR 23-24. The ALJ did not find persuasive the opinion of consultative examiner 13 Molly Malone, Psy.D., who conducted a mental status evaluation of D.L.P. in November 2018 and 14 opined that he is moderately impaired in his ability to complete a normal workday or workweek 15 without interruptions from his psychiatric condition and to deal with the usual stresses 16 encountered in a competitive work environment. AR 24, 1346. The ALJ found Dr. Malone’s 17 opinion inconsistent with D.L.P.’s ability to withstand the stress of the evaluation and with his 18 ability to conduct daily living activities, as reported to Dr. Malone. AR 24. Additionally, the ALJ 19 noted that Dr. Malone did not review all of D.L.P.’s medical records and appeared to rely heavily 20 on D.L.P.’s subjective complaints, which the ALJ found inconsistent with the objective evidence. 21 AR 24, 1343. 22 D.L.P. does not challenge the ALJ’s evaluation of this evidence, including the assessment 23 of the opinions of Drs. Rowan and Malone. However, he appears to take issue with the fact that 24 the ALJ’s discussion of this evidence is included in the portion of his decision concerning steps 25 two and three of the sequential analysis, rather than step four. See Dkt. No. 34 at 4. 26 Acknowledging that a mental RFC determination “requires a more detailed assessment by 27 itemizing various functions contained in the broad categories found in paragraph B of the adult 1 two analysis into his RFC assessment, stating that his subsequent RFC assessment “reflects the 2 degree of limitation [he] has found in the ‘paragraph B’ mental function analysis.” AR 25. Some 3 courts have concluded that the same or similar statements incorporating the ALJ’s step two 4 analysis into the RFC determination are merely empty boilerplate statements, where “the ALJ did 5 not discuss or give reasoned consideration of the plaintiff’s [mental impairments] in his RFC 6 assessment.” Carlson v. Berryhill, No. 18-cv-03107-LB, 2019 WL 1116241. at *17 (N.D. Cal. 7 Mar. 10, 2019) (citing cases). In the present case, however, given the detailed discussion that 8 precedes the ALJ’s statement incorporating his step two analysis into the subsequent RFC 9 assessment, the Court finds that this statement was not mere boilerplate, and that the ALJ did 10 consider D.L.P.’s non-severe mental impairments in formulating his RFC. See, e.g., Virginia 11 Estelle G. v. Comm’r of Soc. Sec., No. 21-cv-00674-W-KSC, 2022 WL 1404218, at *9-10 (S.D. 12 Cal. May 4, 2022) (concluding that the ALJ properly incorporated the step two analysis into the 13 RFC analysis by reference, where the ALJ’s psychiatric review technique included specific 14 findings as to plaintiff’s degree of limitation in each functional area, as well as a discussion of the 15 medical evidence and opinions relating to plaintiff’s mental impairments); Frary v. Comm’r of 16 Soc. Sec., No. 1:20-cv-00260-SAB, 2021 WL 5401495, at *19 (E.D. Cal. Nov. 18, 2021) 17 (concluding that the ALJ’s “reasoned further discussion in conjunction with the express 18 incorporation of the step two findings within the RFC, distinguishes this from other cases finding 19 error, and the Court finds this was not a hollow boilerplate incorporation of the paragraph B 20 criteria within the RFC.”); Jones v. Berryhill, No. EDCV 17-1138-AS, 2018 WL 3956479, at *3 21 (C.D. Cal. Aug. 15, 2018) (concluding that although the ALJ did not include any mental 22 limitations in plaintiff’s RFC, he properly considered at step two the overall record evidence and 23 the functional limitations resulting from plaintiff’s impairments, including those that are not 24 severe); Ball v. Colvin, No. CV 14-2110-DFM, 2015 WL 2345652, at *3 (C.D. Cal. May 15, 25 2015) (concluding that the ALJ considered plaintiff’s mild mental limitations in determining her 26 RFC by incorporating his step two analysis by reference, and when formulating plaintiff’s RFC, 27 stating “that ‘Dr. Dossett’s opinion and the opinion of the State Agency medical consultant 1 to step two of the sequential evaluation process.’”); Webb v. Colvin, No. 2:12-cv-00592-GMN- 2 PAL, 2013 WL 5947771, at *12 (D. Nev. Nov. 5, 2013) (“Although the ALJ did not extensively 3 discuss Plaintiff’s mental impairments at step four, he thoroughly discussed the evidence 4 supporting his findings at step two and incorporated them by reference in his RFC analysis. . . . 5 The Court finds the ALJ considered Plaintiff’s mild mental limitations in his RFC analysis.”). 6 The Court also is not persuaded that the ALJ erred by not including any limitations 7 reflecting mild mental impairments in D.L.P.’s RFC. As noted above, D.L.P. does not contest the 8 ALJ’s finding that his mental impairments are mild and not severe and “do not cause more than 9 minimal limitation in [his] ability to perform basic mental work activities,” a finding that is 10 supported by substantial evidence in the record. See AR 23-25, 250-286, 422-434, 1338-1348; see 11 also 20 C.F.R. § 416.920a(d)(1) (“If we rate the degrees of your limitation as ‘none’ or ‘mild,’ we 12 will generally conclude that your impairment(s) is not severe, unless the evidence otherwise 13 indicates that there is more than a minimal limitation in your ability to do basic work activities.”). 14 As noted above, the record reflects that the ALJ considered D.L.P.’s mild mental impairments, but 15 such impairments need not be included in the RFC. Jones, 2018 WL 3956479 at *3 (“Because the 16 ALJ found that Plaintiff’s mental impairments were non-severe and did not cause any significant 17 impairments, the ALJ was not required to include them in Plaintiff’s RFC.”); Ball, 2015 WL 18 2345652 at *3 (“As the ALJ found that Plaintiff’s mental impairments were minimal, the ALJ was 19 not required to include them in Plaintiff’s RFC.”). 20 D.L.P. nonetheless maintains that the ALJ erred by relying on a hypothetical to the VE that 21 did not reflect any mental impairments. He argues that the ALJ was obliged to pose a hypothetical 22 asking the VE to determine if his mild limitations in the four broad paragraph B criteria would 23 have any impact on his ability to perform his skilled past relevant work. Dkt. No. 31 at 8. “An 24 ALJ must propose a hypothetical that is based on medical assumptions supported by substantial 25 evidence in the record that reflects each of the claimant’s limitations.” Osenbrock v. Apfel, 240 26 F.3d 1157, 1163-64 (9th Cir. 2001) (citing Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir.1995)); 27 see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006) (“As the Commissioner 1 those limitations supported by substantial evidence.”). “The limitation of evidence in a 2 hypothetical question is objectionable only if the assumed facts could not be supported by the 3 record.” Magallanes v. Bowen, 881 F.2d 747, 757 (9th Cir. 1989) (internal quotations and citation 4 omitted). “The [VE]’s opinion about a claimant’s residual functional capacity has no evidentiary 5 value if the assumptions in the hypothetical are not supported by the record.” Id. at 756 (citing 6 Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)); Thomas v. Barnhart, 278 F.3d 947, 956 7 (9th Cir. 2002) (“In order for the testimony of a VE to be considered reliable, the hypothetical 8 posed must include all of the claimant’s functional limitations, both physical and mental supported 9 by the record.”) (internal quotations and citations omitted). As noted above, the ALJ relied on a 10 hypothetical based on an RFC for light work with additional postural limitations, as to which the 11 VE testified that D.L.P.’s past relevant work could be performed. AR 283. The Court finds no 12 error here. For the reasons discussed above, the ALJ’s finding that D.L.P.’s mental impairments 13 do not cause more than minimal limitation in his ability to perform basic work activities is 14 supported by substantial evidence in the record. These impairments did not need to be included in 15 the RFC, and therefore they also did not need to be included in the hypothetical posed to the VE. 16 See Osenbrock, 240 F.3d at 1164-65 (concluding that ALJ did not err by omitting any limitations 17 for depression from a hypothetical question, where the record demonstrated that claimant’s mild 18 depression “presented no significant interference with the ability to perform basic work-related 19 activities.”); Sisco v. Colvin, No. 13-CV-01817-LHK, 2014 WL 2859187, at *8 (N.D. Cal. June 20 20, 2014) (“As the ALJ determined that Sisco’s mental impairment imposed ‘no significant 21 functional limitations,’ the ALJ was not required to include a mental limitation in the 22 hypotheticals posed to the vocational expert.”). 23 B. Medication Side Effects 24 D.L.P. contends that the ALJ erred in failing to consider the side effects of his 25 medications—namely, dizziness that he says affects his ability to concentrate. He argues that the 26 alleged error is material because his claimed difficulties with concentration are inconsistent with 27 the ability to perform his past relevant work as a jeweler and are more consistent with the ALJ’s 1 testified would preclude D.L.P.’s past work. See AR 283-84. 2 “An ALJ is required to consider all factors that might have a significant impact on an 3 individual’s ability to work, including the side effects of medication.” Browning v. Colvin, 228 F. 4 Supp. 3d 932, 944 (N.D. Cal. 2017) (citing Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 5 1993)); see also Varney v. Sec. of Health & Human Servs., 846 F.2d 581, 585 (9th Cir.) (stating 6 that “the side effects of medications can have a significant impact on an individual’s ability to 7 work and should figure in the disability determination process”), modified on rehearing on other 8 grounds, 859 F.2d 1396 (1988); 20 C.F.R. § 416.929(c)(3)(iv) (stating that assessment of a 9 claimant’s alleged symptoms related to a medical impairment includes the “type, dosage, 10 effectiveness, and side effects of any medication [the claimant] take[s] or ha[s] taken to alleviate 11 [their] pain or other symptoms.”). “Side effects not ‘severe enough to interfere with [a claimant’s] 12 ability to work’ are properly excluded from consideration.” Browning, 228 F. Supp. 3d at 944 13 (quoting Osenbrock, 240 F.3d at 1164)). “The plaintiff ultimately bears the burden of 14 demonstrating that his use of medications caused a disabling impairment.” Id. (citing Miller v. 15 Heckler, 770 F.2d 845, 849 (9th Cir. 1985)). 16 The primary focus of D.L.P.’s arguments is his hypertension medication, which he claims 17 causes dizziness affecting his ability to concentrate, and consequently, his ability to perform his 18 past skilled work as a jeweler. See Dkt. No. 31 at 9-10. Although D.L.P. directs the Court to his 19 hearing testimony, D.L.P. did not testify that he experienced dizziness as a side effect of his 20 hypertension medication. See AR 264, 271-72. D.L.P. points to medical records documenting a 21 past medical history of the treatment of hypertension with “unknown meds” that D.L.P. said 22 “make him dizzy,” as well as his reports to health providers that Amlodipine made him dizzy. 23 However, those same records also indicate that D.L.P.’s hypertension medication was changed 24 from Amlodipine to Lisinopril; in June 2019 D.L.P. reported taking Lisinopril daily, with no 25 problems; in September 2019, his hypertension medication was changed again after he reported 26 that Lisinopril made him “feel bad”; and subsequent records indicate he continued with his new 27 medication, with no mention of side effects and his hypertension “reasonably well controlled.” 1 1325, 1332, 1611, 1612, 1614, 1617, 1620, 1627, 1638, 1642, 1915. D.L.P. cites to a record of a 2 February 2020 hospital visit, noting that he reported “feeling lightheaded and dizzy.” AR 54. 3 However, nothing in that record (concerning treatment for hematemesis and resultant mild 4 anemia) indicates that those symptoms were due to any medication. The ALJ did not err in failing 5 to consider the side effects of D.L.P.’s hypertension medications because D.L.P. has not produced 6 “evidence of side effects severe enough to interfere with [his] ability to work.” Osenbrock, 240 7 F.3d at 1164. 8 With respect to his pain medication, D.L.P. directs the Court to the portion of his hearing 9 testimony in which he stated that he does not like his “pain killers” because “it causes dizziness 10 and drowsiness and sedation which keeps [him] from functioning as well.” AR 264. Elsewhere in 11 the hearing transcript, D.L.P. testified that the pain medicine Buprenorphine causes “real bad 12 nausea, dizziness, and sedation” and “prevents [him] from being focused on anything,” noting that 13 he “sometimes catch[es] [him]self nodding off from the medication.” AR 271-272. D.L.P. also 14 points out that in a lumbar spine residual functional capacity questionnaire, D.L.P.’s medical 15 source, Christopher Stewart, DNP, noted that Buprenorphine “can cause nausea, constipation.” 16 AR 1956. Two treatment notes from January 2020 and March 2020 document that D.L.P. 17 reported to a physician that Buprenorphine made him feel nauseous and tired; he was advised to 18 consult with his treating physician about adjusting the dosage. See AR 218, 223. 19 Although the ALJ did not explicitly reference the side effects of D.L.P.’s pain medication, 20 he did give “greatest weight” to D.L.P.’s “subjective statements and [his] use of pain 21 medications,” and on that basis, assessed greater limitations (with respect to climbing ladders and 22 scaffolds, kneeling, crouching and crawling) than those found by consultative examiner, Dr. 23 Soheila Benrazavi, M.D. AR 28-29. The ALJ also addressed D.L.P.’s claimed limitations in his 24 ability to concentrate, the more general complaint to which D.L.P. claims the side effects relate. 25 As noted above, D.L.P. does not challenge the ALJ’s evaluation of the evidence pertaining to his 26 mental impairments, including the opinions of Drs. Rowan and Malone, or his conclusion that 27 D.L.P. has only mild limitations in his ability to concentrate, persist or maintain pace and that do 1 AR 23, 25; 20 C.F.R. § 416.920a(d)(1). Therefore, the Court concludes that D.L.P. has not 2 || demonstrated that the ALJ failed to consider the claimed side effects of his pain medication. See 3 || Frampton vy. Astrue, 405 F. App’x 112 (9th Cir. 2010) (finding no error where the ALJ did not 4 || explicitly discuss claimant’s side effects, but did discuss and reject the more general complaints to 5 which the side effects relate); Muhammed v. Apfel, No. 98-02952 CRB, 1999 WL 260974, at *8-9 6 || (N.D. Cal. Apr. 2, 1999) (concluding that the ALJ did not err in not specifically discussing 7 claimant’s side effect where he addressed claimant’s general symptoms, including dizziness, and 8 || claimant did not claim that her side effects limited her residual capacity in a manner distinct from 9 || her symptoms). 10 || IV. CONCLUSION 11 Based on the foregoing, D.L.P.’s motion for summary judgment is denied and the 12 || Commissioner’s motion for summary judgment is granted. The Clerk shall enter judgment 13 accordingly and close this file. IT IS SO ORDERED. 3 15 Dated: September 26, 2022 16

VIRGINIA K. DEMARCHI Z 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28