Reyes Carrasco Valladares v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: May 27, 2026
• Docket: 1:21-cv-01156
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 REYES CARRASCO VALLADARES, Case No. 1:21-cv-01156-CDB (SS)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 13 v. AND REMANDING ACTION PURSUANT TO SENTENCE FOUR OF 42 U.S.C. 14 COMMISSIONER OF SOCIAL SECURITY, §405(g)

15 Defendant. (Doc. 14)

16 17 Plaintiff Reyes Carrasco Valladares (“Plaintiff”) seeks judicial review of a final decision of 18 the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 19 disability benefits under the Social Security Act (“SSA” or “Act”). (Doc. 1). The matter is before 20 the Court on the Administrative Record (Doc. 10, “AR”) and the parties’ briefs (Docs. 14, 18, 19), 21 which were submitted without oral argument. Upon review of the record, the Court finds and rules 22 as follows.1 23 I. BACKGROUND 24 A. Administrative Proceedings and ALJ’s Decision 25 On August 14, 2018, Plaintiff filed an application for disability and disability insurance 26 benefits with an alleged disability onset date of May 17, 2017. (AR 46). Plaintiff’s claim was

27 1 On February 18, 2022, after the parties consented to the jurisdiction of a U.S. Magistrate Judge for all further proceedings pursuant to 28 U.S.C. § 636(c)(1), this action was reassigned to 1 initially denied on October 1, 2018, and again upon reconsideration on December 19, 2018. Id.

2 Plaintiff requested a hearing before an Administrative Law Judge on December 27, 2018. Id. Debra

3 J. Denney, the Administrative Law Judge (“ALJ”), held a telephone hearing on May 28, 2020,

4 during which Plaintiff, with the assistance of a Spanish interpreter, and impartial vocational expert

5 Robin Cook (“V`E ”) testified. Id. The ALJ held a supplemental telephone hearing on October 1, 6 2020 at which Plaintiff through a Spanish interpreter, impartial medical experts Mary E. Buban, 7 Psy. D. and Seth Meltzer, M.D., and impartial vocational expert Aimee Spinelli testified. Id. 8 Plaintiff amended the alleged disability onset date to April 12, 2018. Id. The ALJ issued an 9 unfavorable decision on January 8, 2021, finding Plaintiff was not disabled. (AR 1, 49-60). The 10 Appeals Council denied Plaintiff’s request for review on June 29, 2021, rendering the ALJ’s 11 decision as the final decision of the Commissioner. (AR 1). Plaintiff subsequently filed this action 12 seeking judicial review of the ALJ’s decision. (Doc. 1). 13 In the decision, the ALJ considered Plaintiff’s claims using the five-step sequential 14 evaluation required by 20 C.F.R. §§ 404.1520(a) and 416.920(a). (AR 49-60). At step one, the 15 ALJ found that Plaintiff had not engaged in substantial gainful activity since April 12, 2018, the 16 amended alleged onset date. (AR 49). 17 At step two, the ALJ found that Plaintiff had the following severe medically determinable 18 impairments (“MDIs”) which significantly limit the ability to perform basic work activities as 19 required by Social Security Ruling (“SSR”) 85-28: anxiety, depression, and degenerative disc 20 disease. Id. 21 At step three, the ALJ found that Plaintiff did not have an impairment, or any combination 22 of impairments, that met or medically equaled the severity of one of the listed impairments in 20 23 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (AR 49). 24 The ALJ considered the severity of Plaintiff’s mental impairments, considering whether the four 25 broad functional areas of mental functioning listed in the “paragraph B” criteria are satisfied.2 26 2 The “paragraph B” criteria evaluate mental impairments in the context of four broad areas 27 of functioning: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. 1 Because Plaintiff’s mental impairments did not cause at least two “marked” limitations or one

2 “extreme” limitation, and do not cause more than minimal limitation in Plaintiff’s ability to perform

3 basic mental work activities, the ALJ found the paragraph B criteria were not satisfied and that the

4 mental impairments are non-severe. (AR 50-51). The ALJ also found that the evidence in this case

5 fails to establish `t he presence of “paragraph C” criteria.3 (AR 51). 6 Prior to step four, the ALJ found that Plaintiff has the RFC to perform light work as defined 7 in 20 C.F.R. § 404.1567(b) except for the following non-exertional limitations: 8 [Plaintiff] can lift and carry twenty pounds occasionally and ten pounds frequently; stand, walk, and sit for six hours in an eight-hour workday; can occasionally climb 9 ramps and stairs; should not work on ladders, ropes, scaffolds, unprotected heights, 10 or fast-moving machinery; and occasionally stoop, kneel, crouch, and crawl. [Plaintiff] can perform simple, routine, and repetitive work; is able to sustain 11 attention, concentration for up two hours at a time; can interact appropriately with coworkers and supervisors; would do best with brief, occasional contact only with 12 public; and is able to tolerate routine change and otherwise able to sustain routine and maintain attention. 13 14 (AR 51). 15 In considering Plaintiff’s symptoms and the extent to which these symptoms can reasonably 16 be accepted as consistent with objective medical evidence and other evidence, the ALJ noted he 17 followed the two-step process as set forth in 20 C.F.R. § 404.1529, SSR 16-3p, and 20 C.F.R. § 18 404.1520c. (AR 52). The ALJ noted Plaintiff’s allegations of disability from the record:

19 [Plaintiff] alleged disability due to depression, anxiety, and heart palpitations. [He] 20 reported that h[is] condition worsened to the point that he experienced constant panic attacks and escalating anxiety levels. He also reported that the left side of his 21 face, arm, and hand were numb. At the initial hearing, [Plaintiff] testified that he experiences dizziness and nausea at times. At the supplemental hearing, [he] 22 testified the he suffers from ongoing anxiety that causes difficulty with working

23 four areas of functioning is identified as either “no limitation,” “mild,” “moderate,” “marked,” or 24 “extreme.” Id. To satisfy the paragraph B criteria, a claimant must have an “extreme” limitation in at least one of the areas of mental functioning, or a “marked” limitation in at least two of the 25 areas of mental functioning. Id. 26 3 “Paragraph C,” subsection (1) requires a “highly structured setting that is ongoing that diminishes the signs and symptoms of [Plaintiff’s] mental disorder.” 20 C.F.R. Pt. 404, Subpt. P, 27 App. 1 § 12.04(C)(1). “Paragraph C,” subsection (2) requires that Plaintiff “have minimal capacity to adapt to changes in [Plaintiff’s] environment or to demands that are not already part of 1 [Plaintiff] also alleged limitations to talking, stair climbing, seeing, remembering, completing tasks, concentrating, understanding, following instructions, and getting 2 along with others. Similarly, Aby Carrasco, [Plaintiff’s] wife, noted that [Plaintiff] has limitations to lifting, squatting, bending, standing, reaching, kneeling, talking, 3 stair climbing, seeing, remembering, completing tasks, concentrating,

4 understanding, and following instructions.

5 (AR 52) (citing `H earing Testimony; Exs. 2-5E). Upon consideration of the evidence, the ALJ 6 found that Plaintiff’s MDIs could reasonably be expected to cause the alleged symptoms, but that 7 his statements concerning the intensity, persistence, and limiting effects of symptoms are not 8 entirely consistent with the medical evidence and other record evidence. Id. The ALJ noted that 9 because there is overlap in symptomology between different mental impairments and the nature of 10 mental diagnoses is inherently subjective, she considered Plaintiff’s psychological symptoms and 11 their effect on functioning together instead of separately, regardless of the diagnostic label attached. 12 Id. 13 The ALJ considered Plaintiff’s anxiety, depression and reported symptoms including 14 difficulty remembering and concentrating and limited Plaintiff to performing simple, routine, and 15 repetitive work and found that he is able to sustain attention and concentration for up to two hours 16 at a time. (AR 53). The ALJ considered Plaintiff’s reluctance to leave his home or interact with 17 others and found that he can interact appropriately with co-workers and supervisors but would do 18 best with brief, occasional contact only with public. The ALJ found that given Plaintiff’s nausea 19 and dizziness symptoms, he is able to tolerate routine change and otherwise able to sustain routine 20 and maintain attention but that he should not work on ladders, ropes, scaffolds, unprotected heights, 21 or near fast-moving machinery, and found no additional limitations are supported. Id. 22 The ALJ, considering the record of Plaintiff’s hearing testimony, medical evidence, 23 treatment notes, mental health treatment history, activities of daily living (“ADLs”), and prior 24 administrative medical findings, determined that the record does not support limitations that would 25 prevent him from working within the RFC. (AR 51-58). The ALJ assessed the RFC’s limitations 26 acknowledging Plaintiff’s reported pain, reduction in range motion testing, and imaging, while 27 considering that the exam findings, overall treatment records, and reported activities are 1 concluded that the assessed RFC is supported by the evidence. (AR 58).

2 At step four, the ALJ determined that Plaintiff is unable to perform any past relevant work

3 under 20 C.F.R. §§ 404.1565. Id. The ALJ found that Plaintiff was a younger individual on the

4 amended alleged disability onset date and has a limited education. Id. The ALJ found that

5 transferability of` job skills is not material to the determination of disability based on her finding 6 that Plaintiff is not disabled whether or not he has transferable job skills under SSR 82-41 and 20 7 C.F.R. Part 404, Subpart P, Appendix 2. (AR 59). 8 At step five, the ALJ found that there are jobs that exist in significant numbers in the 9 national economy that Plaintiff could perform. Id. The ALJ cited assemble small products, laundry 10 worker, and merchandise marker based on the testimony of the vocational expert. (AR 59-60). The 11 ALJ therefore concluded a finding of “not disabled” was appropriate under sections 216(i) and 12 223(d) of the Act from April 12, 2018, through the date of the decision. (AR 60). 13 B. Medical Record and Hearing Testimony 14 The relevant hearing testimony and medical record were reviewed by the Court and will be 15 referenced below as necessary to this Court’s decision. 16 II. LEGAL STANDARD 17 A district court’s review of a final decision of the Commissioner of Social Security is 18 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 19 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or is 20 based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” 21 means “relevant evidence that a reasonable mind might accept as adequate to support a 22 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 23 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and citation 24 omitted). “[I]t is such relevant evidence as a reasonable mind might accept as adequate to support 25 a conclusion.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (quotation and citation 26 omitted). In determining whether the standard has been satisfied, a reviewing court must consider 27 the entire record as a whole rather than searching for supporting evidence in isolation. Id. 1 and may not affirm the ALJ on a ground upon which she did not rely. Social Security Act § 205,

2 42 U.S.C. § 405(g). In reviewing a denial of benefits, a district court may not substitute its

3 judgment for that of the Commissioner. “The court will uphold the ALJ’s conclusion when the

4 evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d

5 1035, 1038 (9th `C ir. 2008). Further, a district court will not reverse an ALJ’s decision on account 6 of an error that is harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] 7 ultimate nondisability determination.” Id. (quotation and citation omitted). The party appealing 8 the ALJ’s decision generally bears the burden of establishing that it was harmed. Shinseki v. 9 Sanders, 556 U.S. 396, 409-10 (2009). 10 A claimant must satisfy two conditions to be considered “disabled” and eligible for benefits 11 within the meaning of the Social Security Act. First, the claimant must be “unable to engage in any 12 substantial gainful activity by reason of any medically determinable physical or mental impairment 13 which can be expected to result in death or which has lasted or can be expected to last for a 14 continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the 15 claimant’s impairment must be “of such severity that he is not only unable to do his previous 16 work[,] but cannot, considering his age, education, and work experience, engage in any other kind 17 of substantial gainful work which exists in the national economy.” 42 U.S.C. § 18 1382c(a)(3)(B). 19 The Commissioner has established a five-step sequential analysis to determine whether a 20 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 21 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant 22 is engaged in “substantial gainful activity,” the Commissioner must find that the claimant is not 23 disabled. 20 C.F.R. § 416.920(b). 24 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 25 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 C.F.R. 26 § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of impairments 27 which significantly limits [his or her] physical or mental ability to do basic work activities,” the 1 satisfy this severity threshold, however, the Commissioner must find that the claimant is not

2 disabled. Id.

3 At step three, the Commissioner compares the claimant’s impairment to impairments

4 recognized by the Commissioner to be so severe as to preclude a person from engaging in

5 substantial gainf`u l activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as severe or more 6 severe than one of the enumerated impairments, the Commissioner must find the claimant disabled 7 and award benefits. 20 C.F.R. § 416.920(d). 8 If the severity of the claimant’s impairment does not meet or exceed the severity of the 9 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 10 functional capacity,” defined generally as the claimant’s ability to perform physical and mental 11 work activities on a sustained basis despite his or her limitations (20 C.F.R. § 416.945(a)(1)). 12 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 13 claimant is capable of performing work that he or she has performed in the past (past relevant 14 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, 15 the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If the 16 claimant is incapable of performing such work, the analysis proceeds to step five. 17 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 18 claimant is capable of performing other work in the national economy. 20 C.F.R. § 19 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational 20 factors such as the claimant’s age, education, and past work experience. Id. If the claimant is 21 capable of adjusting to other work, the Commissioner must find that the claimant is not disabled. 20 22 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to other work, the analysis 23 concludes with a finding that the claimant is disabled and is therefore entitled to benefits. Id. 24 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 25 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 26 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 27 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 1 III. ISSUES AND ANALYSIS4

2 Plaintiff seeks judicial review of the Commissioner’s final decision denying her application

3 and raises five (5) issues:

4 1. Whether the ALJ provided specific and legitimate reasons for discounting the opinions

5 of tes`t ifying medical expert Seth Meltzer, M.D. and medical expert Rachna Soriano, 6 D.O.; 7 2. Whether the ALJ explained her departure from the limitations set forth in the opinion 8 of testifying medical expert Mary Buban, Psy.D.; 9 3. Whether remand is necessary for the ALJ to consider and address the medical source 10 opinion of Plaintiff’s treating psychiatrist, Ann Torres, M.D.; and 11 4. Whether the ALJ provided germane reasons for discounting the third-party statements 12 of Plaintiff’s spouse, Aby Carrasco. 13 (Doc. 14 at 15). 14 A. Whether the ALJ Provided Specific and Legitimate Reasons for Discounting 15 Medical Expert Opinions and Departing from Limitations Assessed Therein 16 1. Parties’ Contentions 17 Plaintiff contends that the ALJ failed to provide specific and legitimate reasons for 18 discounting the opinions of testifying medical expert Dr. Seth Meltzer and medical expert Dr. 19 Rachna Soriano. Id. at 16-23. Plaintiff argues the ALJ, in finding Dr. Meltzer’s opinion partially 20 persuasive and supported by a detailed explanation, failed to provide specific and legitimate reasons 21 for discounting the assessment that Plaintiff was limited to standing and walking a total of three 22 hours in an eight-hour workday. Id. at 18. Plaintiff contends that the ALJ fails to explain why or 23 how Meltzer’s assessed standing and walking limitations were contradicted by diagnostic findings 24 of record, Plaintiff’s activities of walking, and ability to work part-time in 2019 or properly 25 discounted by the ALJ’s selective reference to examination findings. Id. at 18-20. As to Dr. 26 Soriano, Plaintiff acknowledges that although the opinion is incomplete as page two of the 27 statement is absent from the record, he argues that absence does not invalidate the rest of the 1 opinion, the supportability and consistency of which were not assessed by the ALJ. Id. at 22-23.

2 As to Dr. Buban’s opinion, Plaintiff asserts that although the ALJ found the opinion mostly

3 persuasive, the ALJ did not provide specific analysis addressing or rejecting Dr. Buban’s

4 assessment to Plaintiff’s mental limitations. Id. at 24-25.

5 Defendan` t contends the ALJ properly evaluated the medical opinions under the applicable 6 regulations. (Doc. 18 at 9). Defendant argues the ALJ properly assessed the consistency of Dr. 7 Meltzer’s opinion with the longitudinal evidence in finding the opinion only partially persuasive, 8 and that the ALJ discussed the opinion’s supportability in noting that Plaintiff’s lumbar spine MRI 9 form 2020 was not supported of the assessed limitations. Id. at 13-14. Defendant contends the 10 ALJ properly found Dr. Soriano’s opinion unpersuasive because it was incomplete and, at the 11 hearing, Plaintiff’s attorney dismissed the report as “not critical.” Id. at 15 (citing AR 168). 12 Defendant argues that the assessed RFC adequately accounts for Dr. Buban’s opined imitations as 13 the RFC contained similar but not identical mental limitations. Id. at 17. 14 Plaintiff argues in reply that the ALJ’s reasons for discounting the opinions of Drs. Meltzer, 15 Soriano, and Buban failed to meet the substantial evidence standard. (Doc. 19 at 3). Plaintiff 16 contends the ALJ’s rationale for discounting Dr. Meltzer’s opinion was not supported by record 17 evidence as the ALJ disregarded Dr. Meltzer’s testimony that Plaintiff would be limited to frequent 18 neck movements due to his cervical spinal stenosis and would miss one day of work per month due 19 to increased pain. He also argues the ALJ erroneously substituted his own interpretation of MRI 20 and examination evidence for that of a medical expert, and Plaintiff’s activities did not show that 21 he had a functional capacity demonstrating that he could work in a competitive full-time job. Id. 22 Plaintiff asserts the ALJ fails to explain how she considered the supportability and consistency of 23 Dr. Soriano’s opinion. Id. at 3-4. Plaintiff contends the ALJ did not explain her departure from 24 Dr. Buban’s assessed mental limitations that Plaintiff could not perform tandem work, that he 25 should work independently of others, and that he should not perform fast-paced work or work 26 involving production quotas. Id. at 4. 27 2. Governing Authority 1 agency’s newest regulations applicable to an ALJ’s evaluation of medical opinions. 20 C.F.R. §

2 416.920c. Under these regulations, the Commissioner does “not defer or give any specific

3 evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative

4 medical findings(s), including those from [a plaintiff’s] medical sources.” 20 C.F.R. §§

5 404.1520c(a), 41` 6.920c(a). Thus, the regulations require an ALJ to apply the same factors to all 6 medical sources when considering medical opinions and no longer mandate particularized 7 procedures that the ALJ must follow in considering opinions from treating sources. See 20 C.F.R. 8 § 404.1520c(b) (the ALJ “is not required to articulate how [he] considered each medical opinion or 9 prior administrative medical finding from one medical source individually.”); Trevizo v. Berryhill, 10 871 F.3d 664, 675 (9th Cir. 2017). 11 Instead, “[w]hen a medical source provides one or more medical opinions or prior 12 administrative medical findings, [the ALJ] will consider those medical opinions or prior 13 administrative medical findings from that medical source together using” the following factors: (1) 14 supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; (5) other 15 factors that “tend to support or contradict a medical opinion or prior administrative medical 16 finding.” 20 C.F.R. §§ 404.1520c(a), (c)(1)-(5). The most important factors to be applied in 17 evaluating the persuasiveness of medical opinions and prior administrative medical findings are 18 supportability and consistency. 20 C.F.R. §§ 404.1520c(a), (b)(2). Regarding the supportability 19 factor, the regulation provides that the “more relevant the objective medical evidence and 20 supporting explanations presented by a medical source are to support his or her medical opinion(s), 21 the more persuasive the medical opinions ... will be.” 20 C.F.R. § 404.1520c(c)(1). In other words, 22 “[s]upportability means the extent to which a medical source supports the medical opinion by 23 explaining the ‘relevant ... objective medical evidence.’” Woods v. Kijakazi, 32 F.4th 785, 791-92 24 (9th Cir. 2022) (quoting 20 C.F.R. § 404.1520c(c)(1)). Regarding the consistency factor, the “more 25 consistent a medical opinion(s) is with the evidence from other medical sources and nonmedical 26 sources in the claim, the more persuasive the medical opinion(s) ... will be.” 20 C.F.R. § 27 404.1520c(c)(2). 1 prior administrative medical finding based on these two factors. 20 C.F.R. § 404.1520c(b)(2). The

2 ALJ “may, but [is] not required to, explain how [he] considered the [other remaining factors],”

3 except when deciding among differing yet equally persuasive opinions or findings on the same

4 issue. 20 C.F.R. § 404.1520c(b)(2)-(3). Further, the ALJ is “not required to articulate how [he]

5 considered evide`n ce from nonmedical sources.” 20 C.F.R. § 404.1520c(d). Nonetheless, the Court 6 must determine whether the ALJ adequately explained “how [he] considered the supportability and 7 consistency factors” relative to medical opinions and whether the reasons were free from legal error 8 and supported by substantial evidence. Woods, 32 F.4th at 792-93. 9 3. Dr. Seth Meltzer 10 a. Dr. Meltzer’s Opinion 11 At the hearing, medical expert Dr. Meltzer testified that he found the following 12 impairments: mild central canal stenosis of the cervical spine (from Ex. 7F), thoracic spine 13 degenerative disc disease and lumbar spine degenerative disease (from Ex. 20F), and mild 14 disequilibrium (from the ears, nose, and throat physician’s notes regarding dizziness). (AR 170- 15 71). Dr. Meltzer found that these impairments did not meet any listing in the Social Security 16 Regulations but that he noted specific functional limitations or restrictions from these limitations. 17 (AR 171). Dr. Meltzer opined the following limitations of Plaintiff: lifting up to 20 pounds 18 frequently; sitting for six hours and standing and walking for three hours in an eight-hour workday; 19 no limitations as to reaching, fingering and feeling on the right or left upper extremities; could 20 occasionally climb stairs but would never be able to kneel, crouch, crawl or stoop; and no 21 significant environmental limitations. (AR 171-72). Dr. Meltzer noted Plaintiff’s “antalgic gait 22 leaning towards the left side” but that he did not “see a mention that he was using a cane or required 23 a cane.” (AR 173). He opined that Plaintiff is occasionally limited to balancing and never able to 24 work with ladders or unprotected heights or fast moving machinery. (AR 173-74). 25 On cross-examination, Dr. Meltzer opined that Plaintiff would be frequently able to move 26 his neck while acknowledging that movement could exacerbate pain in the neck region. (AR 174- 27 75). He opined that Plaintiff would be able to reach forward full-time because he did not see any 1 175). Dr. Meltzer testified that certain maneuvers cause pain that would linger for some time,

2 noting from Ex. 32F that Plaintiff received an injection from a pain physician and that “it seemed

3 as if [Plaintiff] was doing okay after the injection and that’s an example of kind of dealing with it

4 and it exacerbates the disease in his spine.” (AR 176). Dr. Meltzer opined that Plaintiff would

5 have to miss wor`k due to increased pain about one day a month. Id. In response to the ALJ’s inquiry 6 whether he expects “these things to persist or in your review did it seem like there was any treatment 7 that provided relief from these conditions[,]” Dr. Meltzer opined that he “would expect it to persist 8 because the degenerative changes typically those are better. Some treatment can alleviate as 9 mentioned in [Ex. 32F]. There was a transforaminal epidural steroid injection that’s noted. It was 10 also mentioned I think moving towards physical therapy. So, there are things that can make it 11 better. The injections seem to have helped.” (AR 177). 12 b. Analysis 13 The ALJ found the opinion of Dr. Meltzer partially persuasive, noting that Dr. Meltzer 14 found Plaintiff “could lift and carry up to twenty pounds[,] sit for six hours[,] stand and walk for 15 three hours[,] occasionally climb stairs[,] never knee[l], crouch, crawl, or stoop[,] balance 16 occasionally[,] [could not] climb[] ladders, ropes, or scaffolds[,] and [have] no exposure to heights 17 or fast moving machinery[.]” (AR 56) (citing Hearing Testimony; Exs. 14D, 9F, 11F, 17F, 18F, 18 29-32F). The ALJ acknowledged that Dr. Meltzer’s opinion was “supported by a detailed 19 explanation and is partially consistent with the overall evidence.” Id. 20 The ALJ noted from the medical evidence that diagnostic imaging did not show any lumbar 21 spinal cord compromise and only a probable abutment or impingement of the L5 nerve roots, that 22 Plaintiff reported injection therapy was significantly effective in treating radicular pain, there was 23 no evidence of any surgical intervention, and Plaintiff had normal examination findings. Id. The 24 ALJ acknowledged that “the evidence supports a limitation to the reduced range of the light 25 exertional level” but that “the improvement with treatment, work activity, and gardening, do not 26 support the need for any further reductions in standing or walking” and that Dr. Meltzer’s 27 assessment that Plaintiff is reduced to stand and walk for three hours is not consistent with the 1 Here, the ALJ appropriately considered the supportability and consistency of Dr. Meltzer’s

2 opinion in discounting the assessment that Plaintiff is limited to standing and walking for three

3 hours. The ALJ found the opinion supported “by a detailed explanation” and explained her findings

4 of the relevant medical evidence considered by Dr. Meltzer, including of Plaintiff’s diagnostic

5 imaging results, `“ significantly effective” improvement with radicular pain from injection therapy, 6 normal examination findings, no use of assistive ambulatory devices, and the absence of evidence 7 of surgical intervention. See Woods, 32 F.4th at 791-92; see also Reddick, 157 F.3d at 725 (ALJ 8 must “set forth his own interpretations and explain why they, rather than the doctors, are correct.”). 9 The ALJ acknowledged that the evidence considered supports some limitations but does not support 10 any further reductions in standing or walking. After discussing the medical evidence, the ALJ 11 referenced Plaintiff’s improvement with treatment, past work activity in 2019, and activities of 12 daily living of taking brisk walks and gardening as additional reasons in discounting Dr. Meltzer’s 13 opinion as inconsistent with the overall evidence. (AR 56). 14 “An ALJ properly may consider a plaintiff's reported activities in evaluating the 15 persuasiveness of medical opinions.” Donnelly v. Comm’r of Soc. Sec., No. 1:21-cv-01117-CDB 16 (SS), 2025 WL 1473954, at *9 (E.D. Cal. May 22, 2025) (citing Leonard v. Comm'r of Soc. Sec., 17 No. 1:21-cv-00627-EPG, 2022 WL 4123990, at *4 (E.D. Cal. Sept. 9, 2022) (“[W]hen considered 18 in conjunction with the rest of the ALJ's reasoning, the ALJ's reliance on Plaintiff's daily 19 activities—caring for her cat, preparing simple meals, cleaning, and sometimes administering her 20 father's insulin, etc.—is a reasonable basis to discount the severe limitations assessed [in a medical 21 opinion]”)). “This analysis comports with the applicable standards setting forth ‘supportability’ 22 and ‘consistency’ as the most important factors when evaluating opinions in the record.” Id. (citing 23 20 C.F.R. § 404.1520c(b)(2)). Therefore, the ALJ properly addressed how she considered the 24 supportability and consistency of Dr. Meltzer’s opinions in finding the opinion partially persuasive 25 and incorporating these considerations in the RFC such that the ALJ’s discounting of the opinion’s 26 limitations to three hours standing and walking is supported by substantial evidence. See id; 27 Woods, 32 F. 4th at 791-92; Jones v. Saul, No. 2:19-CV-01273 AC, 2021 WL 620475, at *8 (E.D. 1 consistency of a medical opinion.… [T]he ALJ [is not allowed] to forego articulation of their

2 ‘reason or reasons’ altogether; rather, [the new regulations] provide specific articulation

3 requirements.”).

4 4. Dr. Rachna Soriano

5 ` a. Dr. Soriano’s Opinion 6 At the hearing, the ALJ noted that she requested Dr. Soriano to testify but that he was not 7 available. (AR 168). The ALJ noted that Plaintiff’s counsel’s letter to the ALJ indicated that “there 8 were two pages missing from the Heather in SS” to which Plaintiff’s counsel responded that “[m]y 9 understanding in 26-F, … I didn’t see anything about standing and walking. But, I can do that sort 10 of anew since we have a new doctor. It’s not critical.” Id. The ALJ confirmed that Plaintiff’s 11 counsel was speaking of two missing pages from Exhibit 26F. (AR 168-69). 12 At Exhibit 26F, the ALJ requested via interrogatories Dr. Soriano’s professional opinion on 13 Plaintiff’s claim. (AR 1154). Dr. Soriano opined that Plaintiff has difficulty lifting, bending, 14 crawling, squatting, and kneeling. (AR 1155) (citing Ex. 20F). He opined that Plaintiff could lift 15 and carry up to ten pounds frequently and up to 20 pounds occasionally; could frequently use his 16 hands for reaching, handling, fingering, feeling, and pushing/pulling; occasionally operate foot 17 controls with his right foot and frequently with his left; occasionally climb stairs and ladders and 18 balance and never climb ladders or scaffolds, stoop, kneel, crouch, or crawl; assessed 19 environmental limitations that he can never work in unprotected heights, occasionally can move 20 mechanical parts, operate a motor vehicle, humidity and wetness, dust odors, fumes and pulmonary 21 irritants, extreme cold and heat, and moderate noise; and could perform activities such as shopping, 22 traveling without a companion, ambulate without assistance, walk at a reasonable pace on rough or 23 uneven surfaces, and use standard public transportation. (AR 1155-62). Dr. Soriano noted that the 24 limitations found above lasted or will last for 12 consecutive months. (AR 1162). 25 b. Analysis 26 The ALJ noted that impartial medical expert Dr. Soriano opined that Plaintiff could lift and 27 carry up to 20 pounds occasionally and ten pounds frequently; frequently use his hands; 1 balance and climb ramps or stairs; never perform other postural activities; and never be exposed to

2 unprotected heights. (AR 58) (citing Ex. 26F). The ALJ found Dr. Soriano’s opinion unpersuasive

3 because “it appears to be missing a page regarding standing or walking limitations” and “[t]his

4 assertion of a missing page was also pointed out by the representative at the hearing.” The ALJ

5 found that becau`s e “it is incomplete, the opinion is not found to be persuasive.” Id. 6 Generally, “[t]he [plaintiff] has the burden of proving that she is disabled.” Smolen v. 7 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). However, “[t]he ALJ always has a ‘special duty to 8 fully and fairly develop the record and to assure that the [plaintiff’s] interests are considered … 9 even when the [plaintiff] is represented by counsel.’” Celaya v. Halter, 332 F.3d 1177, 1183 (9th 10 Cir. 2003) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). “An ALJ’s duty to 11 develop the record further is triggered only when there is ambiguous evidence or when the record 12 is inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 13 459-60 (9th Cir. 2001); Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (citing 20 C.F.R. 14 §§ 404.1512(e), 416.912(e)); see Brown v. Berryhill, 697 F. App’x 548, 549 (9th Cir. 2017) 15 (“Because the record evidence was not ambiguous and the record was sufficient to allow for proper 16 evaluation of the evidence, the ALJ was not required to re-contact Brown’s doctors or further 17 develop the record.”). “Ambiguous evidence, or the ALJ’s own finding that the record is 18 inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s duty.” Tonapetyan v. 19 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 20 As a preliminary matter, the Court notes that neither party asserts nor did the ALJ find that 21 Dr. Soriano’s opinion evidence is ambiguous or that the record is inadequate. At the hearing, 22 Plaintiff’s counsel observed that she did not see anything about standing or walking limitations in 23 Dr. Soriano’s opinion at Exhibit 26F but that she “can do that sort of anew since we have a new 24 doctor” and that “[i]t’s not critical.” (AR 168). Plaintiff’s counsel did not ask the ALJ to further 25 develop the record, thereby forfeiting any argument thereto. Meanel v. Apfel, 172 F.3d 1111, 1115 26 (9th Cir. 1999); see Marin v. Comm'r of Soc. Sec., No. 1:24-cv-00055-SAB, 2024 WL 3845357, at 27 *9 n.8 (E.D. Cal. Aug. 16, 2024) (“[T]he Court notes that the weight of authority finds that the 1 the ALJ.”); Puchert v. Comm'r of Soc. Sec., No. 2:22-CV-2177-DMC, 2024 WL 991639, at *8

2 (E.D. Cal. Mar. 7, 2024) (“Given that Plaintiff was represented by counsel during the administrative

3 proceedings and never sought a new examination, the argument that the ALJ failed to develop the

4 record is foreclosed.”); Jones v. Kijakazai, No. 2:22-cv-00909-EFB (SS), 2023 WL 3955679, at *5

5 (E.D. Cal. June 1` 2, 2023) (same); Cindy T. v. Kijakazi, No. 21-cv-00005, 2022 WL 16633010, at 6 *3 (S.D. Cal. Sept. 23, 2022) (“Because it is Plaintiff's burden to present evidence in support of 7 [his] alleged disability, the mere absence of a report from a treating or examining physician does 8 not give rise to a duty to develop the record.”). Therefore, the ALJ’s duty to further develop the 9 record is not triggered in this case. 10 Here, the ALJ, in discounting the entire opinion based on its incompleteness for failing to 11 include a page regarding standing or walking limitations, failed to consider the supportability and 12 consistency of Dr. Soriano’s assessed limitations other than to standing or walking, such as to 13 stooping, reaching, handling, and environmental limitations to working in wetness and humidity. 14 The ALJ therefore did not satisfy her duty to set forth how she considered the supportability of Dr. 15 Soriano’s assessment in finding his opinion unpersuasive. See Woods, 32 F.4th at 791-92 16 (“Supportability means the extent to which a medical source supports the medical opinion by 17 explaining the ‘relevant ... objective medical evidence.’”) (quotation omitted); Gonzales v. 18 Kijakazi, No. 1:20-cv-1530-SKO, 2022 WL 267438, at *12 (E.D. Cal. Jan. 28, 2022) (“[C]urrent 19 Ninth Circuit law … requir[es] a detailed and thorough summary of conflicting evidence, and an 20 interpretation of findings thereon, [and] the ALJ must explicitly address evidence that supports and 21 is consistent with a less-than persuasive medical opinion[], and should this evidence fail to 22 persuade, the ALJ must provide legally sufficient reasons.”); Jones, 2021 WL 620475, at *8. The 23 ALJ likewise failed her duty to identify how the opinion is inconsistent with any other medical 24 source of record. Woods, 32 F.4th at 792-93. 25 Because the ALJ failed to adequately address how Dr. Soriano’s opinion lacked 26 supportability or consistency or provide any other reason to discount the opinion, she improperly 27 found the opinion not persuasive. Therefore, the ALJ’s finding that Dr. Soriano’s opinion was not 1 Plaintiff argues that the ALJ’s error with regard to Dr. Soriano’s opinion was not harmless

2 because “[h]ad the ALJ adopted the[se] limitations[,] Plaintiff would not have been able to perform

3 work as a small products assembler” or “the occupation of laundry worker.” (Doc. 14 at 23).

4 Plaintiff contends that Dr. Soriano’s recommended restrictions to working in moderate noise

5 environments pr`e clude him from work as a small products assembler while Dr. Soriano’s 6 recommendation “with regard to stooping, reaching, handling, and working around wetness and 7 humidity” precludes his work as a laundry worker. Id. 8 Defendant contends that “any error in the ALJ’s assessment of Dr. Soriano was harmless” 9 because “even if the ALJ had included the limitations from Dr. Soriano’s report that were available, 10 Plaintiff would still be able to perform the representative occupation of merchandise maker” such 11 that “the ALJ’s finding that Plaintiff was not disabled at step five remains valid[.]”5 (Doc. 18 at 12 16) (citing AR 59). Although Plaintiff does not address Defendant’s arguments as to whether 13 Plaintiff remains able to perform the occupation of merchandise maker, (see Doc. 19), the Court 14 considers the issue here. 15 Even if the Court were to assume that the ALJ erred by failing to incorporate Dr. Soriano’s 16 recommended restrictions, such error is harmless. Because “[t]he ALJ only needed to identify one 17 occupation that exists in significant numbers in the national economy to satisfy the [Agency’s] 18 burden at step five[,]” Hugo R. v. O’Malley, No. 23-cv-1222-JES(LR), 2024 WL 3597111, at *17 19 (S.D. Cal. July 30, 2024) (citing Wolfe v. Astrue, No. 09-cv-922-BR, 2010 WL 3222109, at *7 (D. 20 Or. Aug. 13, 2010)), and here, the ALJ identified the occupation of merchandise maker based on 21

22 5 “The duties of a merchandise maker are as follows under the DOT:

23 Marks and attaches price tickets to articles of merchandise to record price and identifying information: Marks selling price by hand on boxes containing merchandise, or on price 24 tickets. Ties, glues, sews, or staples price ticket to each article. Presses lever or plunger of 25 mechanism that pins, pastes, ties, or staples ticket to article. May record number and types of articles marked and pack them in boxes. May compare printed price tickets with entries 26 on purchase order to verify accuracy and notify supervisor of discrepancies. May print information on tickets, using ticket-printing machine [TICKETER (any industry); TICKET 27 PRINTER AND TAGGER (garment).] 1 the VE’s testimony which exists in significant numbers in the national economy that Plaintiff can

2 perform (see AR 59), the ALJ’s inclusion of Dr. Soriano’s recommended restrictions precluding

3 the positions of assemble small products and laundry worker is immaterial to the ALJ’s overall

4 determination that Plaintiff was not disabled. Accordingly, the ALJ’s finding that the existence of

5 a position “illust`r ates that representative jobs exist in significant numbers, even without taking the 6 [assemble small products and laundry worker] position[s] into account” and therefore the ALJ’s 7 error to reconsider those positions is harmless. Hugo R., 2024 WL 3597111, at *17; see id. at *18 8 (“[A]ny error in the ALJ's decision with regard to the merchandise marker position is harmless. 9 The ALJ only needed to identify one occupation that exists in significant numbers within the 10 national economy to satisfy the [Agency’s] burden at step five.”). 11 5. Dr. Mary Buban6 12 a. Dr. Buban’s Opinion 13 Medical expert and clinical psychologist Dr. Buban testified at the hearing. (AR 178-94). 14 She testified that under the B criteria, Plaintiff’s ability to understand, remember and apply 15 information is “predominately mild” but she “would add a further restriction for learning new, 16 complex tasks and interacting with others” which she felt “would be moderately limited and that 17 limitation would involve no customer service type work, no tandem teamwork and any job 18 [Plaintiff] would have he should do independent, primarily independent of others and that’s to 19 address anxiety issues.” (AR 181). She opined that: Plaintiff’s ability to concentrate, persist and 20 maintain pace would be moderate based on “the combination of the psychologist and physical 21 complaints in that it would just be a normal work place. No fast paced work, no production quota 22 work”; as to adapting and managing oneself, Plaintiff’s overall was “mild” as she “was not finding 23 significant cognitive limitations opined in the record and it did not appear that he was needing 24 significant support for daily tasks” and “for instance, [at Ex. 14F], October [2019], he was working 25 part-time. So, a higher level of independence was apparent in the record that would not meet more 26 6 The Court notes that Dr. Buban is identified as “Mary E. Buban” and “Dr. Buban” in the 27 ALJ’s decision and the parties’ briefs while she is identified as “Dr. Mary Bublin” throughout the Hearing Testimony transcript. Cf. (AR 55-56) and (Docs. 14, 18, 19) with (AR 178-94). The Court 1 than a mild limitation in adapting and managing oneself”; and that Plaintiff had a moderate

2 limitation in interacting with others. (AR 181-82).

3 b. Analysis

4 The ALJ acknowledged Dr. Buban’s opinions in their entirety. (AR 55) (citing Ex. 27F;

5 Hearing Testimo` ny). The ALJ found Dr. Buban’s opinion mostly persuasive because it was 6 supported by a detailed explanation, “both in the paperwork and at the hearing,” and was mostly 7 consistent with the overall evidence.” Id. (citing Exs. 3E, 4E, 5F, 8F, 9F, 13-16F, 18F, 27F, 29- 8 31F; Hearing Testimony). Indeed, the ALJ properly considered the opinion was supported in 9 evaluating Plaintiff’s improvement with medication and normal mental examination findings and 10 that the opinion was consistent with his activities of daily living in being able to pay bills and count 11 change. (AR 56). The ALJ acknowledged Plaintiff’s reported complaints in limiting him to simple, 12 routine and repetitive tasks in the RFC. Id. 13 A plaintiff’s RFC is “the most [he] can still do despite [his] limitations.” 20 C.F.R. § 14 404.1545(a); id. § 416.945(a). The RFC assessment is an administrative finding based on all 15 relevant evidence in the record, not just medical evidence. Bayliss, 427 F.3d at 1217. In 16 determining the RFC, the ALJ must consider all limitations, severe and non-severe, that are credible 17 and supported by substantial evidence in the record. Id. However, an ALJ’s RFC findings need 18 only be consistent with relevant assessed limitations and not identical to them. See Turner v. 19 Comm’r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010) (“Although the ALJ rejected any 20 implication in Dr. Koogler’s evaluation that Turner was disabled, he did incorporate Dr. Koogler’s 21 observations into his residual functional capacity determination ... These limitations were entirely 22 consistent with Dr. Koogler’s limitation.”). Ultimately, a plaintiff’s RFC is a matter for the ALJ to 23 determine. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). Any RFC that fails to include 24 all of a plaintiff’s credible limitations and any subsequent opinion of a vocational expert are 25 “incomplete.” See Bagby v. Comm’r Soc. Sec., 606 F. App’x 888, 890 (9th Cir. 2015). An ALJ 26 need not use the same language as the medical opinion setting forth the limitations, as long as the 27 RFC sufficiently accounts for the limitations. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1 Plaintiff’s contention that the ALJ did not provide any specific analysis addressing or

2 explaining her departure from Dr. Buban’s assessment—that Plaintiff could not perform tandem

3 work, that he should work independently of others, and that he should not perform fast-paced work

4 or work involving production quotas (AR 55-56, 181-82)—is unavailing. Here, the ALJ’s RFC is

5 consistent with `D r. Buban’s assessment because the ALJ found that Plaintiff could “perform 6 simple, routine, and repetitive work” and “interact appropriately with co-workers and supervisors” 7 with “brief, occasional contact only with the public” and that Plaintiff “is able to tolerate routine 8 change and otherwise able to sustain routine and maintain attention.” (AR 51). The RFC’s 9 restrictions are consistent with Dr. Buban’s assessment of a moderate limitation to interacting with 10 others. “Accordingly, the RFC’s assessment adequately captured all of [Dr. Buban’s assessed] 11 limitations [of Plaintiff].” Rogers v. Comm’r of Soc. Sec., 490 Fed. Appx. 15, 17-18 (9th Cir. 2012) 12 (citing Stubbs–Danielson, 539 F.3d at 1174). Insofar as Plaintiff argues that Dr. Buban’s opinion 13 is subject to another rational interpretation of the record, “[w]here evidence is susceptible to more 14 than one rational interpretation, the ALJ's decision should be upheld.” Orn v. Astrue, 495 F.3d 625, 15 630 (9th Cir. 2007) (quotation omitted). 16 B. Whether Remand is Necessary for the ALJ to Consider and Address the 17 Medical Source Opinion of Plaintiff’s Treating Psychiatrist Dr. Ann Torres 18 1. Parties’ Contentions 19 Plaintiff asserts that remand is necessary for the ALJ to consider and address the medical 20 source opinion of Plaintiff’s treating psychologist, Ann Torres, M.D. (Doc. 14 at 25). Plaintiff 21 argues that Dr. Torres’s February 24, 2021, letter constitutes a treating medical source opinion 22 material to the evaluation of his disability claim. Id. Plaintiff argues that although the letter was 23 submitted for the first time to the Appeals Council after the ALJ’s decision, it is evidence the Court 24 must consider in evaluating whether the ALJ’s decision is supported by substantial evidence. Id. 25 Defendant contends that Dr. Torres’s letter does not amount to a medical opinion as the 26 letter did not address Plaintiff’s functional capabilities such that the ALJ is not required to discuss 27 the statements or notations therein. (Doc. 18 at 18-19). Defendant argues the letter provides no 1 evidence contained within that would alter the outcome of the ALJ’s decision. Id. at 19.

2 2. Dr. Torres’s February 24, 2021, Letter

3 Dr. Ann Torres reported that Plaintiff was initially seen in April 2018 with complaint of

4 daily episodes of dizziness associated to ear fullness, palpitations, nausea, tinnitus, and occipital

5 pain for one yea`r duration. (AR 15). Dr. Torres notes that: Plaintiff reports continued follow up 6 with his primary care doctor, neurologist, cardiologist, and ENT doctors over the last several years; 7 he is currently taking an anxiolytic with this provider which has helped anxiety related to dizziness 8 but has not resolved episodes of dizziness which he reports continue to happen daily; his wife has 9 also spoken to this provider and has corroborated that he in fact experiences episodes of dizziness 10 daily; his recounting of events has been consistent over the past [two] and half years in treatment 11 with this provider; there is no evidence of malingering; [Plaintiff] expresses a strong desire to 12 resume work but episodes have been impairing even when only trying to help family around the 13 home; he also expresses distress as episodes have also impaired his social and personal activities; 14 he finds it difficult to spend time with friends, go to church, etc. due to episodes; he is currently 15 diagnosed with unspecified depressive disorder and unspecified anxiety disorder; rule out anxiety 16 or mood disorder secondary to another general medical condition; rule out panic disorder; and he 17 has been compliant with follow up visits. Id. 18 3. Analysis 19 As a preliminary matter, the Court agrees with Plaintiff that “[a]lthough this medical 20 evidence was submitted for the first time to the Appeals Council after the ALJ’s decision, it is 21 nevertheless evidence” that becomes part of the administrative record “which this Court must 22 consider in evaluating whether the ALJ’s decision is supported by substantial evidence.” (Doc. 14 23 at 25-26) (citing Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012)); see 24 Tackett, 180 F.3d at 1097-98 (“[A] court must ‘consider the record as a whole, weighing both 25 evidence that supports and evidence that detracts from the [Commissioner’s] conclusion.”) (citation 26 omitted). 27 The parties dispute whether Dr. Torres’s letter is a medical opinion. As noted above, under 1 specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior

2 administrative medical finding(s), including those from [a plaintiff’s] medical sources.” 20 C.F.R.

3 §§ 404.1520c(a), 416.920c(a). The regulations further provide that the Commissioner will

4 articulate the persuasiveness of “all medical opinions and all of the prior administrative medical

5 findings in [the]` c ase record” and sets forth specific factors that must be addressed. 20 C.F.R. §§ 6 404.1520c(b)-(c). Thus, if Dr. Torres’s letter is a medical opinion and the ALJ failed to articulate 7 how persuasive she found the opinion under the regulations, the ALJ erred. 8 Here, the ALJ’s failure to discuss Dr. Torres’s letter means she “did not address whether 9 the letter was a medical opinion such that its treatment required the articulation set forth by the 10 regulations. Alvarez v. Comm’r of Soc. Sec., No. 1:21-cv-01711-CDB (SS), 2025 WL 1001589, at 11 *5 (E.D. Cal. Apr. 3, 2025); see Johnson v. Kijakazi, No. 21-15919, 2022 WL 2593516, at *1 (9th 12 Cir. 2022) (remanding case because “nowhere [in] the ALJ’s decision [did she] examine the 13 substance of [the] letter … so the agency c[ould] address in the first instance whether [the] letter 14 include[d] medical opinions.”). “Because a court may ‘review only the reasons provided by the 15 ALJ in the disability determination and may not affirm the ALJ on a ground upon which [s]he did 16 not rely,’ the Court cannot affirm the ALJ's decision.” Id. (citing Garrison v. Colvin, 759 F.3d 995, 17 1010 (9th Cir. 2014)). Therefore, the ALJ erred in failing to discuss Dr. Torres’s letter whatsoever. 18 Further, although the ALJ addressed Dr. Torres’s medical opinions in the decision (see AR 56-57), 19 the ALJ’s failure to acknowledge the letter is not harmless. See id.; cf. Johnson, 2022 WL 2593516, 20 at *1 (majority op.) with *2 (Bea, J., dissenting) (concluding any error by ALJ in considering a 21 medical opinion contained in a two-page letter was harmless given every limitation described in 22 the letter was considered by the ALJ elsewhere). Accordingly, as in Johnson, remand to allow the 23 ALJ to address in the first instance whether Dr. Torres’s letter contains medical opinions is 24 appropriate. 25 C. Whether the ALJ Provided Germane Reasons for Discounting the Third-Party 26 Statement of Plaintiff’s Spouse 27 The undersigned notes that, at the time of the parties’ briefing, it was an “open question 1 although it is settled an ALJ need not articulate her consideration of such evidence in a decision.

2 Fryer v. Kijakazi, No. 21-36004, 2022 WL 17958630, at *3 n.1 (9th Cir. Dec. 27, 2022). In the

3 recent case of Hudnall v. Dudek, 130 F.4th 668 (9th Cir. 2025), the Ninth Circuit clarified that

4 nonmedical sources, to include lay testimony from friends and family, are still to be considered in

5 determining the` consistency of medical opinions or prior administrative medical findings; 6 nonetheless, the regulations expressly allow ALJs to discount nonmedical evidence without any 7 explanation. Id. at 670-71. However, the Ninth Circuit later withdrew the Hudnall decision. 8 Hudnall v. Dudek, 133 F.4th 968 (9th Cir. 2025); see Hudnall v. Dudek, No. 23-3727, 2025 WL 9 1379101, at *1 (9th Cir. May 13, 2025) (declining to resolve the issue of standard applicable to an 10 ALJ’s review of nonmedical testimony). As such, it appears the consideration of lay witness 11 evidence under the revised regulations remains an open question. As discussed below, the Court 12 need to not resolve this dispute here. 13 1. Parties’ Contentions 14 Plaintiff contends the ALJ erroneously failed to provide germane reasons for discounting 15 the third-party statement of his spouse, Aby Carrasco. (Doc. 14 at 26-27). Plaintiff asserts the ALJ 16 failed to provide any rationale for discounting Ms. Carrasco’s statements, which, if credited, would 17 support a finding that Plaintiff’s impairments prevented him from performing the mental demands 18 of full-time competitive work activity, and that the error is not harmless. Id. at 27-28; see (Doc. 19 19 at 7-8). 20 Defendant argues that under the revised regulations, the ALJ is not required to specifically 21 address lay witness evidence. (Doc. 18 at 20). Defendant contends the revised regulations contain 22 no directive that ALJs must articulate reasons for how they valued nonmedical evidence including 23 lay witness evidence. Id. at 21-22. 24 2. Analysis 25 Plaintiff’s spouse, Aby Carrasco, submitted a third-party function report on August 22, 26 2018. (AR 605-12). She reported that Plaintiff had shortness of breath, nausea, memory loss, 27 pressure in his head; was slow in reacting to conversations; could not drive; that he blacked out 1 attention for just a short period of time; he did not finish what he started; he did not handle stress

2 or changes in routine well; and that he had deficits in following written and oral instructions. (AR

3 605, 610-11).

4 Regarding Ms. Carrasco’s report, the ALJ stated only that “[s]imilarly, Aby Carrasco, the

5 [Plaintiff’s] wife` , noted that [Plaintiff] has limitations to lifting, squatting, bending, standing, 6 reaching, kneeling, talking, stair climbing, seeing, remembering, completing tasks, concentrating, 7 understanding, and following instructions[.]” (AR 52) (citing Ex. 3E). The ALJ further stated that 8 Plaintiff “and his wife reported that he is able to pay bills and count change” in finding the opinion 9 of Dr. Torres persuasive. (AR 57) (citing Ex. 3E). 10 Thus, the record evidence is clear that the ALJ, in his assessment of Plaintiff’s subjective 11 symptomology testimony and consideration of prior administrative medical findings, referred to 12 Ms. Carrasco’ third-party function report. (AR 52, 57). This consideration was sufficient under 13 the revised regulations. See Schilling v. Comm'r of Soc. Sec., No. 1:21-cv-01268-SAB, 2022 WL 14 17418343, at *14 (E.D. Cal. Dec. 5, 2022) (“[T]he new regulations do not support a requirement 15 that the ALJ articulate ‘germane reasons’ for rejecting lay witness testimony, but only a 16 requirement that the lay testimony was ‘considered.’”); Mahnaz M. v. Kijakazi, No. 22-cv-1729- 17 BGS, 2024 WL 21794, at *8 (S.D. Cal. Jan. 2, 2024) (same); e.g., Mary M. v. Kijakazi, No. 20-cv- 18 1457-AGS, 2022 WL 891445, at *6 (S.D. Cal. Mar. 25, 2022) (“The Court concludes that ALJs are 19 not required to articulate specific reasons for their findings about the persuasiveness of nonmedical- 20 source testimony, and instead must merely show that they considered such evidence in deciding the 21 claim.”). 22 Additionally, even if the ALJ was required to articulate how he evaluated Ms. Carrasco’s 23 third-party function report, any failure to do so is harmless error as Ms. Carrasco’s statements 24 largely mirrored Plaintiff’s own statements about his subjective symptomology. The Ninth Circuit 25 holds that an ALJ is not required provide specific reasoning when rejecting lay witness testimony 26 where such testimony was similar to the Plaintiff’s own subjective complaints, which the ALJ 27 provided clear and convincing reasons for rejecting. See Valentine v. Comm’r of Soc. Sec. Admin., 1 [plaintiff’s] own subjective complaints, and because [the lay witness’] testimony was similar to

2 such complaints, it follows that the ALJ also gave germane reasons for rejecting [the lay witness’]

3 testimony”). Because Plaintiff does not contest that the ALJ provided clear and convincing reasons

4 for discounting his subjective symptomology testimony, see (Docs. 14, 19), Plaintiff therefore

5 waived any argu`m ent thereto and concedes this issue. See (AR 52); Gertsch v. Colvin, 589 Fed. 6 Appx. 381, 381 (9th Cir. 2015) (“The ALJ rejected Gertsch's subjective complaints as not credible, 7 a finding that Gertsch does not challenge on appeal and has therefore waived.”) (citing Avenetti v. 8 Barnhart, 456 F.3d 1122, 1125 (9th Cir. 2006)). 9 Another judge of this Court recently has credited Defendant’s interpretation of the revised 10 regulations. See, e.g., Gausling v. Comm’r of Soc. Sec., No. 2:24-cv-0301-DMC, 2025 WL 347280, 11 at *11 (E.D. Cal. Jan. 30, 2025) (“The Court agrees with the Commissioner that the new regulatory 12 framework requires an ALJ to consider lay testimony but does not necessarily require her to 13 articulate how she considered it.”). The Gausling court found that the ALJ did consider lay witness 14 testimony because the ALJ summarized such testimony within her report. Similarly, the ALJ here 15 considered Ms. Carrasco’s third-party function report in summarizing the report’s findings and in 16 consideration of Dr. Torres’s opinion. Therefore, the ALJ did not error in discounting Ms. 17 Carrasco’s report. 18 * * * * * 19 In sum, the ALJ failed to consider whether Dr. Torres’s February 24, 2021, letter is a 20 medical opinion that requires the ALJ to consider how persuasive she found the opinion under the 21 regulations. The resulting error is not harmless. Lambert, 980 F.3d at 1278 (citing Brown-Hunter, 22 806 F.3d at 494). 23 D. Remedy 24 Plaintiff requests this case be remanded for further proceedings and a new decision. (Doc. 25 14 at 28). “The decision whether to remand for further proceedings or simply to award benefits is 26 within the discretion of court.” Trevizo, 871 F.3d at 682 (quoting Sprague v. Bowen, 812 F.2d 27 1226, 1232 (9th Cir. 1987)). “Remand for further administrative proceedings is appropriate if 1 | omitted) (9th Cir. 2004). 2 Given the error identified above, the Court concludes that remand for further proceedings 3 || is warranted because additional administrative proceedings may remedy the deficiencies in the 4 | ALJ’s decision noted herein. 5 CONCLUSION AND ORDER 6 For the reasons stated above, IT IS HEREBY ORDERED that: 7 1. Plaintiff's motion for summary judgment (Doc. 14) is GRANTED; 8 2. The ALJ’s decision (Doc. 10) is REVERSED; 9 3. This matter is REMANDED pursuant to sentence four of 42 U.S.C. §405(g) for further 10 proceedings consistent with this decision; and 11 4. The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff Reyes 12 Carrasco Valladares and against Defendant Commissioner of Social Security. 13 | ITIS SO ORDERED. | Dated: _ May 27, 2026 | Word by 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 IB