Redmond v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: September 6, 2022
• Docket: 4:20-cv-05197
• Status: Unknown

Opinion

Sep 06, 2022 1 SEAN F. MCAVOY, CLERK 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 WILLIAM R., No. 4:20-CV-05197-JAG 8

9 Plaintiff, 10 v. ORDER GRANTING 11 DEFENDANT’S MOTION 12 KILOLO KIJAKAZI, FOR SUMMARY JUDGMENT ACTING COMMISSIONER OF 13 SOCIAL SECURITY,1 14 Defendant. 15

16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 19, 21. Attorney Chad Hatfield represents William R. (Plaintiff); Special 18 Assistant United States Attorney Edmund Darcher represents the Commissioner of 19 Social Security (Defendant). The parties have consented to proceed before a 20 magistrate judge. ECF No. 6. After reviewing the administrative record and the 21 briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary 22 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 23 24

25 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on 26 July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 27 Kilolo Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No 28 further action need be taken to continue this suit. See 42 U.S.C. § 405(g). 1 I. JURISDICTION 2 Plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Security Income in February 2018, alleging disability since January 4 1, 2015, due to PTSD, migraines, ADHD, memory problems, and back problems. 5 Tr. 60-61. The applications were denied initially and upon reconsideration. Tr. 6 118-24, 126-31. Administrative Law Judge (ALJ) Jesse Shumway held a hearing 7 on March 18, 2020, Tr. 39-59, and issued an unfavorable decision on April 2, 8 2020. Tr. 15-27. Plaintiff requested review by the Appeals Council and the 9 Appeals Council denied the request for review on August 18, 2020. Tr. 1-5. The 10 ALJ’s April 2020 decision became the final decision of the Commissioner, which 11 is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 12 action for judicial review on October 19, 2020. ECF No. 1. 13 II. STATEMENT OF FACTS 14 Plaintiff was born in 1975 and was 39 years old as of his alleged onset date. 15 Tr. 25. He has a GED and additional schooling in graphic design. Tr. 286, 292, 16 730. His past work was primarily in door-to-door sales. Tr. 224, 286, 292. Plaintiff 17 has alleged limitations stemming from childhood trauma, depression and anxiety, 18 numerous motor vehicle accidents and head injuries, and an inoperable cyst in his 19 brain. Tr. 274, 285-86, 291-92, 686, 725, 729. 20 III. STANDARD OF REVIEW 21 The ALJ is responsible for determining credibility, resolving conflicts in 22 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 23 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 24 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 25 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 26 only if it is not supported by substantial evidence or if it is based on legal error. 27 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 28 1 Substantial evidence is defined as being more than a mere scintilla, but less 2 than a preponderance. Id. at 1098. Put another way, substantial evidence is such 3 relevant evidence as a reasonable mind might accept as adequate to support a 4 conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is 5 susceptible to more than one rational interpretation, the Court may not substitute its 6 judgment for that of the ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner 7 of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 8 If substantial evidence supports the administrative findings, or if conflicting 9 evidence supports a finding of either disability or non-disability, the ALJ’s 10 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 11 Cir. 1987). Nevertheless, a decision supported by substantial evidence will be set 12 aside if the proper legal standards were not applied in weighing the evidence and 13 making the decision. Brawner v. Secretary of Health and Human Services, 839 14 F.2d 432, 433 (9th Cir. 1988). 15 IV. SEQUENTIAL EVALUATION PROCESS 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 18 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 19 four the claimant bears the burden of establishing a prima facie case of disability. 20 Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes that 21 a physical or mental impairment prevents the claimant from engaging in past 22 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 23 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 24 the Commissioner to show (1) the claimant can make an adjustment to other work; 25 and (2) the claimant can perform specific jobs that exist in the national economy. 26 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If 27 a claimant cannot make an adjustment to other work in the national economy, the 28 claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 1 V. ADMINISTRATIVE FINDINGS 2 On April 2, 2020, the ALJ issued a decision finding Plaintiff was not 3 disabled as defined in the Social Security Act. 4 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity since the alleged onset date. Tr. 18. 6 At step two, the ALJ determined Plaintiff had the following severe 7 impairments: major depressive disorder, agoraphobia, PTSD, and polysubstance 8 use disorders. Id. 9 At step three, the ALJ found Plaintiff did not have an impairment or 10 combination of impairments that met or medically equaled the severity of one of 11 the listed impairments. Tr. 18-20. 12 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 13 he could perform work at all exertional levels, except:

14 He is limited to simple and low-level detailed tasks consistent 15 with reasoning level 3 or less; and he can have only occasional, 16 superficial contact with coworkers and the public.

17 Tr. 20. 18 At step four, the ALJ made no findings about past relevant work. Tr. 25 19 At step five, the ALJ found that, based on the testimony of the vocational 20 expert, and considering Plaintiff’s age, education, work experience, and RFC, 21 Plaintiff was capable of performing jobs that existed in significant numbers in the 22 national economy, including the jobs of laundry worker, warehouse worker, and 23 industrial cleaner. Tr. 25-26. 24 The ALJ thus concluded Plaintiff was not under a disability within the 25 meaning of the Social Security Act at any time from the alleged onset date through 26 the date of the decision. Tr. 26. 27

28 1 VI. ISSUES 2 The question presented is whether substantial evidence supports the ALJ’s 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. 5 Plaintiff contends the ALJ erred by: (1) improperly evaluating the medical 6 opinion evidence; (2) rejecting numerous impairments at step two; (3) failing to 7 conduct and adequate step three evaluation; (4) improperly rejecting Plaintiff’s 8 subjective complaints; and (5) failing to conduct an adequate step five analysis. 9 VII. DISCUSSION 10 A. Plaintiff’s Subjective Statements. 11 Plaintiff alleges the ALJ improperly disregarded his subjective symptom 12 reports. ECF No. 19 at 19-20. 13 It is the province of the ALJ to make determinations regarding a claimant’s 14 subjective complaints. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 15 However, the ALJ’s findings must be supported by specific, cogent reasons. 16 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant 17 produces medical evidence of an underlying medical impairment, the ALJ may not 18 discredit testimony as to the severity of an impairment merely because it is 19 unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 20 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting 21 the claimant’s testimony must be “specific, clear and convincing.” Smolen v. 22 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 23 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must identify 24 what testimony is not credible and what evidence undermines the claimant’s 25 complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 26 1993). 27 The ALJ found Plaintiff’s medically determinable impairments could 28 reasonably be expected to cause the alleged symptoms; however, he found 1 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 2 his symptoms were not entirely consistent with the medical evidence and other 3 evidence in the record. Tr. 21. The ALJ found Plaintiff’s allegations to be 4 undermined by his minimal mental health treatment, evidence of exaggeration and 5 secondary gain, largely unremarkable mental status exams, no evidence 6 substantiating Plaintiff’s many alleged physical problems, inconsistent statements 7 about treatment and substance abuse, and a minimal work history. Tr. 21-23. 8 Plaintiff argues the ALJ erred by failing to consider the waxing and waning 9 of mental health symptoms and that Plaintiff’s sporadic engagement in treatment 10 was a result of his mental impairments. ECF No. 19 at 20. He further argues that 11 the ALJ failed to provide any specific examples of inconsistent statements, 12 symptom magnification, or a weak work history. Id. Defendant argues the ALJ 13 reasonably considered the largely unremarkable objective evidence, Plaintiff’s 14 disregard of treatment recommendations, his lack of mental health treatment for 15 long periods, his inconsistent reporting of substance abuse, and his minimal work 16 history in finding his complaints unsupported. ECF No. 21 at 5-9. Defendant also 17 asserts the ALJ reasonably found Plaintiff’s allegations of extreme injuries in the 18 past to be at odds with the medical record to a degree that suggested exaggeration 19 or fabrication. Id. at 3-4. 20 The Court finds the ALJ did not err. An ALJ may consider contradictions 21 with the medical record in assessing the reliability of a claimant’s statements. 22 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2003). The 23 ALJ noted numerous allegations made by Plaintiff that were not reflected in the 24 records, including his alleged long history of motor vehicle accidents, broken 25 bones, frequent migraines, and alleged pineal cyst. Tr. 22. The lack of any 26 confirming evidence for these allegations other than Plaintiff’s own statements, 27 and the normal physical exams contradicting his reports, were reasonable factors 28 for the ALJ to consider. Notably, Plaintiff’s claims about broken bones, severe 1 motor vehicle accidents, and a diagnosed pineal cyst would be easily verifiable 2 through medical records and accident reports if the claims were true. 3 An ALJ may also properly consider evidence of a claimant’s substance use 4 and evidence of drug-seeking behavior in assessing a claimant’s reports. Verduzco 5 v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (conflicting or inconsistent testimony 6 concerning alcohol or drug use can contribute to an adverse credibility finding); 7 Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001) (ALJ properly 8 considered drug-seeking behavior). The ALJ noted the record contained 9 inconsistent reports of Plaintiff’s substance use history and an incident of Plaintiff 10 being unhappy when a provider would not give him stronger pain medication. 11 Tr. 23, 342, 735. These were legitimate factors for the ALJ to consider. 12 While it cannot serve as the sole basis for disregarding a claimant’s reports, 13 support from objective medical evidence is a “relevant factor in determining the 14 severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 15 F.3d 853, 857 (9th Cir. 2001). The ALJ’s interpretation of the objective records as 16 not substantiating Plaintiff’s complaints was reasonable and supported by the 17 largely unremarkable mental status exams and normal physical exams. Tr. 21-22. 18 The Court therefore finds the ALJ offered sufficient clear and convincing reasons 19 for discounting Plaintiff’s subjective reports. 20 B. Opinion Evidence. 21 Plaintiff alleges the ALJ erred by failing to properly consider and weigh the 22 opinion evidence. ECF No. 19 at 8-18. 23 For claims filed on or after March 27, 2017, new regulations apply that 24 change the framework for how an ALJ must weigh medical opinion evidence. 25 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 26 168819, 82 Fed. Reg. 5844 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. 27 The new regulations provide the ALJ will no longer give any specific evidentiary 28 weight to medical opinions or prior administrative medical findings, including 1 those from treating medical sources. 20 C.F.R. § 404.1520c(a). Instead, the ALJ 2 will consider the persuasiveness of each medical opinion and prior administrative 3 medical finding, regardless of whether the medical source is an Acceptable 4 Medical Source. 20 C.F.R. § 404.1520c(c). The ALJ is required to consider 5 multiple factors, including supportability, consistency, the source’s relationship 6 with the claimant, any specialization of the source, and other factors (such as the 7 source’s familiarity with other evidence in the file or an understanding of Social 8 Security’s disability program). Id. The regulations make clear that the 9 supportability and consistency of the opinion are the most important factors, and 10 the ALJ must articulate how they considered those factors in determining the 11 persuasiveness of each medical opinion or prior administrative medical finding. 20 12 C.F.R. § 404.1520c(b). The ALJ may explain how they considered the other 13 factors, but is not required to do so, except in cases where two or more opinions 14 are equally well-supported and consistent with the record. Id. 15 Supportability and consistency are further explained in the regulations: 16 (1) Supportability. The more relevant the objective medical 17 evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior 18 administrative medical finding(s), the more persuasive the 19 medical opinions or prior administrative medical finding(s) will 20 be.

21 (2) Consistency. The more consistent a medical opinion(s) or 22 prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the 23 more persuasive the medical opinion(s) or prior administrative 24 medical finding(s) will be.

25 20 C.F.R. § 404.1520c(c). The Ninth Circuit has additionally held that the new 26 regulatory framework displaces the longstanding case law requiring an ALJ to 27 provide “specific and legitimate” or “clear and convincing” reasons for rejecting a 28 1 treating or examining doctor’s opinion. Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2 2022). 3 1. Dr. Virginia Frazer. 4 Plaintiff’s treating naturopath, Dr. Frazer, completed a letter in February 5 2019 stating Plaintiff was permanently disabled by unremitting migraines cause by 6 an inoperable cyst. Tr. 747. In February 2020 she completed a medical source 7 statement noting Plaintiff’s diagnoses included pineal migraines, depression, 8 anxiety, and PTSD, and that they would result in plaintiff being absent four or 9 more days per month, being limited to sedentary work with only occasional use of 10 his hands for handling and fingering, and being off-task more than 30% of the 11 time. Tr. 741-43. 12 The ALJ found these opinions to be unpersuasive. Tr. 25. He noted the 13 check box form contained little explanation and what explanation was offered bore 14 no rational relation to the limitations proposed. Id. The ALJ further found the 2019 15 letter made it clear Dr. Frazer was relying on a condition for which there was no 16 objective evidence, and that the letter commented on an issue reserved to the 17 Commissioner. Id. 18 Plaintiff argues the ALJ must consider the check box form along with the 19 accompanying treatment records, and asserts that the opinion clearly explained that 20 the limits stemmed from headaches, migraines, back pain, and anxiety. ECF No. 19 21 at 10. He further argues that the opinion is supported by and consistent with the 22 evidence. Id. Defendant argues the ALJ reasonably found the opinions to be poorly 23 supported and inconsistent with the medical records, given the lack of objective 24 evidence confirming any actual brain cyst diagnosis and Dr. Frazer’s lack of 25 explanations and her statement that “no recent tests” had been performed. ECF No. 26 21 at 11-13. 27 The Court finds the ALJ did not err. He discussed the most important factors 28 of consistency and supportability, noting the lack of evidence in the file to confirm 1 the diagnosis of a brain cyst and Dr. Frazer’s own statement that no tests had been 2 done recently to objectively confirm the reported symptoms. Tr. 741. Plaintiff 3 argues the opinion must be read in conjunction with the treatment records, but Dr. 4 Frazer’s records consist of only a few pages of hand-written notes, primarily noting 5 Plaintiff’s subjective complaints, and documenting no objective testing or other 6 evidence supportive of the opinions. Tr. 746-49. The ALJ’s rationale is supported 7 by substantial evidence. 8 2. Dr. Phillip Barnard. 9 In January 2018 Plaintiff attended a consultative psychological exam with 10 Dr. Phillip Barnard. Tr. 291-96. Dr. Barnard noted diagnoses of PTSD, ADHD, 11 and dysthymic disorder, and opined Plaintiff would have moderate and marked 12 limitations in completing various basic work activities. Tr. 293-94. 13 The ALJ found this opinion unpersuasive, noting it was a check box form 14 with little meaningful explanation, was inconsistent with providers’ largely intact 15 mental status exam findings and the record as a whole, and that Dr. Barnard’s 16 opinion assessing issues with simple and detailed tasks conflicted with his own 17 exam findings showing excellent cognitive abilities. Tr. 24. The ALJ further noted 18 the opinion from reviewing doctor Phyllis Sanchez, which stated there was no 19 support for some of Dr. Barnard’s diagnoses and no justification for any of the 20 marked ratings, which the ALJ found to be supported by explanation and 21 consistent with the longitudinal record. Id. 22 Plaintiff argues Dr. Barnard did not assess any cognitive limitations and 23 Plaintiff did not allege such difficulties, thus making the ALJ’s findings regarding 24 the cognitive testing results irrelevant. ECF No. 19 at 12. He further argues that the 25 record shows deficits in memory, concentration, and focus, and the objective 26 findings from the exam support the assessed limitations. Id. at 12-14. Defendant 27 argues the ALJ reasonably found the opinion to be poorly explained and poorly 28 1 supported, and inconsistent with the record as a whole, as supported by Dr. 2 Sanchez’s review. ECF No. 21 at 13-15. 3 The Court finds the ALJ did not err. He reasonably discussed the factors of 4 consistency and supportability, noting the lack of explanation from Dr. Barnard for 5 the marked limitations and his largely normal mental status and other exam 6 findings. Tr. 24. The Court finds the ALJ’s reliance on Dr. Sanchez’s report 7 provides substantial evidence for his conclusions. 8 3. Dr. David Morgan. 9 In November 2019 Plaintiff attended a consultative psychological exam with 10 Dr. David Morgan. Tr. 729-33. Dr. Morgan diagnosed Plaintiff with agoraphobia 11 and major depressive disorder, and opined he had marked and severe impairments 12 in almost all areas of work-related functioning. Tr. 730-31. 13 The ALJ found this opinion to be unpersuasive, noting it was a cursory 14 evaluation with no explanation to support the limits. Tr. 24. The ALJ further noted 15 the report was internally inconsistent with the largely intact mental status findings 16 and was inconsistent with the longitudinal record showing normal intelligence 17 testing, minimal mental health treatment, and largely intact mental status exams. 18 Id. Finally, the ALJ noted the opinion was inconsistent with that of the state 19 agency doctors and expressly disclaimed usefulness for any purpose other than 20 DSHS disability purposes. Id. 21 Plaintiff argues the clinical interview and various reported symptoms were 22 supportive of the opinion, and that the record contained notations of tangential 23 thought process, memory deficits, and impairment in attention and concentration, 24 largely included in records that were not reviewed by the state agency doctors. 25 ECF No. 19 at 15-16. Plaintiff further reiterates that he was not alleging disability 26 based on cognitive impairment. Id. at 16. Defendant argues the ALJ reasonably 27 noted the lack of explanation or objective basis for the opinion, making the marked 28 and severe limits at odds with the mostly normal mental status exam. ECF No. 21 1 at 15-16. Defendant further argues the ALJ reasonably found the opinion 2 inconsistent with the longitudinal record’s generally intact mental status findings 3 and Plaintiff’s average to high average memory and IQ testing. Id. at 16. 4 The Court finds the ALJ did not err. He discussed the most important factors 5 of consistency and supportability, and reasonably interpreted the record as 6 inconsistent with the marked and severe ratings in Dr. Morgan’s opinion, pointing 7 to the largely normal findings at the exam with Dr. Morgan and at various other 8 exams. The ALJ’s assessment is supported by substantial evidence. 9 4. ARNP Angela Combs. 10 In March 2020, Plaintiff’s treating provider Angela Combs completed a 11 medical source statement assessing numerous marked and severe limitations on 12 Plaintiff’s work-related functional abilities and opining he would miss four or more 13 days of work per month and would be off-task over 30% of the time. Tr. 750-53. 14 She noted Plaintiff had several symptoms of traumatic brain injury that greatly 15 impacted his functioning, including difficulty thinking and remembering, difficulty 16 making and keeping relationships, and difficulty with attention, focus, and 17 concentration. Tr. 753. 18 The ALJ found this opinion unpersuasive, noting there was no explanation 19 for the ratings given and they were inconsistent with Ms. Combs’ own treatment 20 notes characterizing Plaintiff’s condition as moderate. Tr. 25. The ALJ further 21 noted the opinion relied on the diagnosis of traumatic brain injury, which there was 22 no objective evidence of. Id. Finally, the ALJ found the opinion inconsistent with 23 the longitudinal record showing generally intact mental status exams. Id. 24 Plaintiff argues Ms. Combs provided detailed rationale, including noting the 25 various signs and symptoms Plaintiff had of TBI. ECF No. 19 at 16-18. He 26 additionally argues that while there may not be records detailing his remote brain 27 injury, multiple treating sources have detailed the effects and symptoms. Id. 28 Defendant argues the ALJ reasonably found the opinion to be poorly explained and 1 undermined by Ms. Combs’ own evidence, including that there was no objective 2 basis for the opinion. ECF No. 21 at 15-17. 3 The Court finds the ALJ did not err. He discussed the supportability and 4 consistency factors, noting the lack of explanation included in the opinion and the 5 lack of supportive evidence for the TBI diagnosis or symptoms. While Plaintiff 6 offers an alternative interpretation of the evidence, the ALJ’s interpretation is 7 reasonable and thus will not be disturbed. Molina v. Astrue, 674 F.3d 1104, 1111 8 (9th Cir. 2012). 9 C. Step Two. 10 Plaintiff argues the ALJ erred at step two by failing to find ADHD, scoliosis 11 and migraines to be severe impairments. ECF No. 19 at 18. 12 At step two of the sequential evaluation process, the ALJ must determine 13 whether the claimant has any medically determinable severe impairments. 20 14 C.F.R. § 404.1520(a)(ii). The impairment “must result from anatomical, 15 physiological, or psychological abnormalities that can be shown by medically 16 acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1521. 17 An impairment is “not severe” if it does not “significantly limit” the ability to 18 conduct “basic work activities.” 20 C.F.R. § 404.1522(a). Basic work activities are 19 “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1522(b). “An 20 impairment or combination of impairments can be found not severe only if the 21 evidence establishes a slight abnormality that has no more than a minimal effect on 22 an individual’s ability to work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 23 1996) (internal quotation marks omitted). The claimant bears the burden of 24 demonstrating that an impairment is medically determinable and severe. Valentine 25 v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). 26 The ALJ made findings regarding each of the challenged conditions. He 27 found there was no documentation of treatment for migraines, despite Plaintiff’s 28 testimony that he had seen a neurologist and tried everything to treat them. Tr. 18. 1 The ALJ found the record contained insufficient findings to establish the diagnosis 2 of ADHD. Id. And the ALJ found Plaintiff’s scoliosis to be mild, based on imaging 3 showing only eight degrees of curvature. Id. 4 The Court finds the ALJ did not err. Plaintiff has failed to challenge the 5 ALJ’s rationale for finding these impairments to be non-severe or not medically 6 determinable, stating only that the conditions are included in the record. ECF 7 No. 19 at 18. The ALJ addressed each of these conditions at step two, offering 8 rationale for his findings. Tr. 18. The Court finds the ALJ’s discussion is supported 9 by substantial evidence. 10 D. Step Three. 11 Plaintiff argues the ALJ erred at step three by failing to consider Listing 12 11.02 for migraines and improperly found Plaintiff’s mental conditions did not 13 meet or equal a listing. ECF No. 19 at 18-19. 14 At step three of the sequential evaluation process, the ALJ considers whether 15 one or more of the claimant’s impairments meets or equals an impairment listed in 16 Appendix 1 to Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). Each 17 Listing sets forth the “symptoms, signs, and laboratory findings” which must be 18 established for a claimant’s impairment to meet the Listing. Tackett v. Apfel, 180 19 F.3d 1094, 1099 (9th Cir. 1999). If a claimant meets or equals a Listing, the 20 claimant is considered disabled without further inquiry. 20 C.F.R. § 404.1520(d). 21 The burden of proof is on the claimant to establish he meets or equals any of the 22 impairments in the Listings. See Tackett, 180 F.3d at 1098. “A generalized 23 assertion of functional problems,” however, “is not enough to establish disability at 24 step three.” Id. at 1100 (citing 20 C.F.R. § 404.1526). 25 The Court finds no error. With respect to migraines, the ALJ did consider 26 listing 11.02 and found it was not met or equaled. Tr. 19. Plaintiff has not offered 27 any analysis of the record or pointed to any objective evidence establishing the 28 criteria of the listing. ECF No. 19 at 19. Plaintiff’s argument with respect to the 1 || mental listings is based on his assertion that the ALJ improperly rejected the 2 || various psychological opinions in the file. Jd. However, as the Court finds the ALJ 3 || did not err with respect to the evaluation of the medical opinions, this argument is 4|| without any merit. 5|| E. Step Five. 6 Plaintiff argues that the ALJ erred in his step five determination because the testimony of the vocational expert was premised on an incomplete hypothetical 8 || stemming from an inaccurate residual functional capacity determination. ECF No. 19 at 20-21. Plaintiff's argument depends on successfully showing that the ALJ erred in his treatment of the symptom statements and medical opinions or at one of the other steps of analysis. /d. Because the Court finds that the ALJ did not 12|| harmfully err in his assessment of the evidence, Plaintiff's argument is without 13 || merit. 14 VU. CONCLUSION 15 Having reviewed the record and the ALJ’s findings, the Court finds the 16|| ALJ’s decision is supported by substantial evidence and free of legal error and is 17|| affirmed. Therefore, IT IS HEREBY ORDERED: 18 l. Defendant’s Motion for Summary Judgment, ECF No. 21, is GRANTED. 20 2. Plaintiff's Motion for Summary Judgment, ECF No. 19, is DENIED. 21 The District Court Executive is directed to file this Order and provide a copy 22 || to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 23 || and the file shall be CLOSED. 24 DATED September 6, 2022.

26 JAMES A. GOEKE _ UNITED STATES MAGISTRATE JUDGE