Salazar v. O'Malley

• Court: District Court, S.D. California
• Decided: June 16, 2025
• Docket: 3:24-cv-01432
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 Case No.: 24CV1432-WHQ(BLM) 10 CARLOS SALAZAR,

11 Plaintiff, REPORT AND RECOMMENDATION FOR ORDER GRANTING IN PART 12 v. PLAINTIFF’S MERITS BRIEF, REVERSING THE DECISION OF THE 13 MARTIN O' MALLEY, COMMISSIONER OF COMMISSIONER, AND REMANDING SOCIAL SECURITY, 14 FOR FURTHER PROCEEDINGS Defendant. 15 [ECF NO. 9] 16 17 Plaintiff Carlos Salazar brought this action for judicial review of the Social Security 18 Commissioner’s (“Commissioner”) denial of his application for Title II Social Security Disability 19 Insurance benefits and Title 16 Supplemental Security Income benefits for lack of disability. ECF 20 No. 1. Before the Court are Plaintiff’s Merits Brief [ECF No. 9 (“Mot.”)], Defendant’s response 21 [ECF No. 11 (“Oppo.”)], and Plaintiffs’ reply [ECF No. 12 (“Reply”)]. 22 This Report and Recommendation is submitted to United States District Judge William Q. 23 Hayes pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United States District 24 Court for the Southern District of California. For the reasons set forth below, this Court 25 RECOMMENDS that Plaintiff’s Merits Brief be GRANTED IN PART, and the decision of the 26 Commissioner REVERSED IN PART AND REMANDED. 27 PROCEDURAL BACKGROUND 1 disability insurance benefits alleging disability beginning on May 20, 2020. See Administrative 2 Record (“AR”) at 17. The claims were denied initially on August 20, 2021 and upon 3 reconsideration on January 18, 2022, resulting in Plaintiff’s request for an administrative hearing 4 on February 15, 2022. Id. 5 On June 15, 2023, a telephonic hearing was held before Administrative Law Judge (“ALJ”) 6 Howard K. Treblin. Id. at 17, 29. Plaintiff, Plaintiff's counsel, David Michael Shore, and an 7 impartial vocational expert (“VE”), Jeff Komar, testified at the hearing. Id. at 17. In a written 8 decision dated October 4, 2023, ALJ Treblin determined that Plaintiff had not been under a 9 disability, as defined in the Social Security Act. Id. at 29. Plaintiff requested review by the 10 Appeals Council. Id. at 7. In a letter dated June 11, 2024, the Appeals Council denied review 11 of the ALJ’s ruling, and the ALJ’s decision therefore became the final decision of the 12 Commissioner. Id. at 1-3. 13 On August 12, 2024, Plaintiff filed the instant action seeking judicial review by the federal 14 district court. ECF No. 1. On December 5, 2024, Plaintiff filed an Opening Brief alleging that 15 the ALJ erred in 1) the RFC assessment which does not reflect all of the limiting effects of 16 Plaintiff’s impairments and is based on independent findings by the ALJ, 2) failing to consider 17 Plaintiff’s mental impairments in the RFC, 3) the step four and five findings which are not 18 supported by substantial evidence, and 4) failing to give clear and convincing reasons for 19 rejecting Plaintiff’s statements. Mot. at 6-20. Defendant filed a timely response asserting that 20 “[t]he ALJ reasonably determined that Plaintiff’s symptom allegations were inconsistent with the 21 record evidence[,]” “[s]ubstantial evidence supports the residual functional capacity finding 22 because it included all alleged limitations supported by evidence while excluding those the ALJ 23 reasonably rejected[,]” and “[s]ubstantial evidence supports the ALJ’s step four finding, and the 24 alternative step five finding.” Oppo. at 2-12. On January 17, 2025, Plaintiff filed a Reply. Reply. 25 ALJ’s DECISION 26 On October 4, 2023, the ALJ issued a written decision in which he determined that Plaintiff 27 was not disabled as defined in the Social Security Act. AR at 29. At step one, the ALJ determined 1 May 20, 2020). Id. at 19. At step two, he considered all of Plaintiff’s medical impairments and 2 determined that the following impairments were “severe” as defined in the Regulations: 3 “degenerative disc disease of the lumbar spine, degenerative joint disease of the bilateral knees, 4 left ear deafness, and right ear hearing loss (20 CFR 404.1520(c) and 416.920(c)).” Id. At step 5 three, the ALJ found that Plaintiff’s medically determinable impairments or combination of 6 impairments did not meet or medically equal the listed impairments in 20 CFR Part 404, Subpart 7 P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). 8 Id. at 22. At step four, the ALJ considered Plaintiff’s severe impairments and determined that 9 his residual functional capacity (“RFC”) permitted him to perform light work as defined in 20 CFR 10 404.1567(b) and 416.967(b) except he can 11 lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or 12 walk for six hours of an eight-hour workday, and sit for six hours of an eight-hour workday; he can push and/or pull comparable to the weight for lifting and carrying 13 relative to the operation of hand and foot controls; he can occasionally climb ramps and stairs, ladders, ropes, and scaffolds, frequently balance, stoop without 14 limitation, and occasionally kneel, crouch, and crawl; he has hearing in only one 15 ear and can hear sirens, alarms, warnings; he can communicate with coworkers, supervisors, and the public, take appropriate precautions if there are audible 16 warnings or alerts; he can frequently work in an environment with moderate noise; he should avoid unprotected heights, dangerous moving machinery. 17 18 Id. at 22. The ALJ found that while Plaintiff’s “medically determinable impairments could 19 reasonably be expected to cause the alleged symptoms;” Plaintiff’s “statements concerning the 20 intensity, persistence and limiting effects of these symptoms are not entirely consistent with the 21 medical evidence and other evidence in the record.” Id. at 23. The ALJ further determined that 22 Plaintiff is capable of performing past relevant work as a Sales Associate. Id. at 27. 23 STANDARD OF REVIEW 24 Section 405(g) of the Social Security Act permits unsuccessful applicants to seek judicial 25 review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of judicial review is 26 limited in that a denial of benefits will not be disturbed if it is supported by substantial evidence 27 and contains no legal error. Id.; see also Miner v. Berryhill, 722 Fed. Appx. 632, 633 (9th Cir. 1 the decision “contains legal error or is not supported by substantial evidence.”) (quoting 2 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). 3 Substantial evidence is “more than a mere scintilla but may be less than a 4 preponderance.” Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (quoting Molina v. Astrue, 5 674 F.3d 1104, 1110–11 (9th Cir. 2012) (quotation marks and citations omitted), 6 . It is relevant evidence that a reasonable person might accept as 7 adequate to support a conclusion after considering the entire record. Id. See also Biestek v. 8 Berryhill, 139 S. Ct. 1148, 1154 (2019). “In determining whether the Commissioner’s findings 9 are supported by substantial evidence, [the court] must review the administrative record as a 10 whole, weighing both the evidence that supports and the evidence that detracts from the [ALJ’s] 11 conclusion.” Laursen v. Barnhart, 127 Fed. Appx. 311 (9th Cir. 2005) (quoting Reddick v. Chater, 12 157 F.3d 715, 720 (9th Cir. 1998)). Where the evidence can reasonably be construed to support 13 more than one rational interpretation, the court must uphold the ALJ’s decision. See Ahearn, 14 988 F.3d at 1115-1116 (citing Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). This 15 includes deferring to the ALJ’s credibility determinations and resolutions of evidentiary conflicts. 16 Id. (“[t]he ALJ is responsible for determining credibility, resolving conflicts in medical testimony, 17 and for resolving ambiguities,” and “we reverse only if the ALJ's decision was not supported by 18 substantial evidence in the record as a whole”) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 19 (9th Cir. 1995) and Molina, 674 F.3d 1110-1111). 20 Even if the reviewing court finds that substantial evidence supports the ALJ’s conclusions, 21 the court must set aside the decision if the ALJ failed to apply the proper legal standards in 22 weighing the evidence and reaching his or her decision. See Miner, 722 Fed. Appx. at 633. 23 Section 405(g) permits a court to enter judgment affirming, modifying, or reversing the 24 Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court also may remand the matter 25 to the Social Security Administration for further proceedings. Id. 26 DISCUSSION 27 Plaintiff argues that the ALJ erred (1) in his RFC assessment because it does not reflect 1 ALJ, (2) by failing to consider Plaintiff’s mental impairments in the RFC, (3) in the step four and 2 five findings which are not supported by substantial evidence, and (4) by failing to give clear 3 and convincing reasons for rejecting Plaintiff’s subjective symptom testimony. Mot. at 6-20. 4 Defendant contends that (1) substantial evidence supports the ALJ’s RFC finding because 5 it included all alleged limitations and only excluded those the ALJ reasonably rejected, (2) 6 substantial evidence supports the ALJ’s step four finding, and the alternative step five finding, 7 and (3) the ALJ reasonably determined that Plaintiff’s symptom allegations were inconsistent 8 with the record evidence. Oppo. at 2-12. 9 Plaintiff reiterates that the RFC assessment by the ALJ is deficient, does not reflect all of 10 his impairments, and is improperly based on the independent findings of the ALJ. Reply. Plaintiff 11 further replies that the step four and five findings are not supported by substantial evidence due 12 to the limitation of frequent work in moderate noise level environments. Id. 13 A. Subjective Symptom Testimony 14 Plaintiff argues that the ALJ failed to provide clear and convincing reasons for rejecting 15 his subjective symptom testimony. Mot. at 17. Specifically, Plaintiff argues that the ALJ’s finding 16 that Plaintiff’s statements were inconsistent “with comparatively slight signs and symptoms and 17 a conversative course of treatment” is an error as it is unclear which of Plaintiff’s symptoms the 18 ALJ considered “slight” and Plaintiff’s treatment has not been conservative. Id. at 19-20. 19 Plaintiff further argues that even if his treatments were considered conservative, the ALJ failed 20 to inquire as to why more aggressive forms of treatment weren’t sought as required. Id. at 20. 21 Defendant contends that the ALJ reasonably determined that Plaintiff’s alleged symptoms 22 were inconsistent with the medical record. Oppo. at 2-6. Defendant notes that Plaintiff’s 23 disagreement with the objective medical evidence is not the standard for overturning the ALJ’s 24 rational findings. Id. at 6. 25 1. Relevant Law 26 The Ninth Circuit has established a two-part test for evaluating a claimant’s subjective 27 symptoms. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). “First, the ALJ 1 impairment which could reasonably be expected to produce the pain or other symptoms 2 alleged.” Id. (internal quotation marks and citation omitted). The claimant, however, need not 3 prove that the impairment reasonably could be expected to produce the alleged degree of pain 4 or other symptoms; the claimant need only prove that the impairment reasonably could be 5 expected to produce some degree of pain or other symptom. Id. If the claimant satisfies the 6 first element and there is no evidence of malingering, then the ALJ “can [only] reject the 7 claimant’s testimony about the severity of her symptoms . . . by offering specific, clear and 8 convincing reasons for doing so.” Id. (internal quotation marks and citation omitted). “General 9 findings are insufficient; rather, the ALJ must identify what testimony is not credible and what 10 evidence undermines the claimant’s complaints.” Reddick, 157 F.3d at 722 (quoting 11 Lester, 81 F.3d at 834). The ALJ’s findings must be “sufficiently specific to permit the court to 12 conclude that the ALJ did not arbitrarily discredit [Plaintiff’s] testimony.” Thomas v. Barnhart, 13 278 F.3d 947, 958 (9th Cir. 2002). 14 When weighing the claimant’s testimony, “an ALJ may consider . . . reputation for 15 truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, 16 and unexplained, or inadequately explained, failure to seek treatment or follow a prescribed 17 course of treatment.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (internal quotation marks 18 and citation omitted). An ALJ also may consider the claimant’s work record and testimony from 19 doctors and third parties regarding the “nature, severity, and effect of the symptoms” of which 20 the claimant complains. Thomas, 278 F.3d at 958–59 (internal quotation marks and citation 21 omitted); see also 20 C.F.R. § 404.1529(c). If the ALJ’s finding is supported by substantial 22 evidence, the court may not second-guess his or her decision. See Thomas, 278 F.3d at 959; 23 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (where the ALJ’s 24 credibility assessment is supported by substantial evidence, it will not be disturbed even where 25 some of the reasons for discrediting a claimant’s testimony were improper). 26 As an initial matter, neither party contests the ALJ’s determination that Plaintiff has the 27 following severe impairments: “degenerative disc disease of the lumbar spine, degenerative joint 1 and 416.920(c)).” AR at 19. Because the ALJ determined that Plaintiff’s “medically determinable 2 impairments could reasonably be expected to cause the alleged symptoms”—a finding that is 3 not contested by either party—the first prong of the ALJ’s inquiry regarding Plaintiff’s subjective 4 symptoms is satisfied. Id. at 23; see also Lingenfelter, 504 F.3d at 1036; Mot., Oppo. 5 Furthermore, neither party alleges that the ALJ found that Plaintiff was malingering. See Mot.; 6 Oppo. As a result, the Court must determine whether the ALJ provided clear and convincing 7 reasons for discounting Plaintiff’s subjective claims regarding his symptoms. See Lingenfelter, 8 504 F.3d at 1036. 9 The ALJ identified three reasons for discounting Plaintiff’s subjective claims. The Court 10 will consider each reason individually. 11 1. Conservative Treatment 12 One reason the ALJ provided for discounting Plaintiff’s subjective symptom testimony was 13 Plaintiff’s conservative course of treatment. AR at 23. The ALJ noted that “[a]s for [Plaintiff’s] 14 statements about the intensity, persistence, and limiting effects of symptoms, they are 15 inconsistent with comparatively slight signs and symptoms and a conservative course of 16 treatment during the period at issue in this decision” and “[w]hile the record supplies ample 17 evidence of bilateral knee pain, tenderness, and reduced range of motion, the related symptoms 18 have received conservative treatment throughout the period under consideration.” Id. at 23-24 19 (citing 21F at 41-42). The ALJ noted Plaintiff’s treatments including icing, chiropractic 20 manipulation, pain management, spinal cord stimulation, a trial of an interferential unit trial for 21 the left foot, aqua therapy, Ibuprofen, Acetaminophen, Neurontin, hearing aids, Soma1, bilateral 22 knee braces, therapy, Remeron, and Zoloft. Id. at 23-24 (citing 2F at 21, 24, 29, 23F at 6, 27F 23 at 42, and 23F at 70). 24 "[E]vidence of 'conservative treatment' is sufficient to discount a claimant's testimony 25 regarding severity of an impairment." Parra v. Astrue, 481 F.3d 742, 750-751 (9th Cir. 2007)

26 27 1 “Soma is a muscle relaxer that blocks pain sensations between the nerves and the brain.” https://www.drugs.com/soma.html 1 (citation omitted) (finding that treatment with over-the-counter pain medication was 2 conservative treatment). “An ALJ may rely on conservative treatment to discount a claimant's 3 testimony only after he has considered why the claimant did not pursue more aggressive 4 treatment.” Cody G. v. Commissioner of Social Security, 2024 WL 4177930, at *11 (E.D. Wash., 5 Sept. 12, 2024) (citing SSR 16-3p (“We will not find an individual's symptoms inconsistent with 6 the evidence in the record on this basis without considering possible reasons why he or she may 7 not comply with treatment or seek treatment consistent with the degree of his or her 8 complaints.”) and Eitner v. Saul, 835 F. App'x 932, 933 (9th Cir. 2021) (citing SSR 16-3p and 9 finding that failure to pursue more aggressive treatment was not a clear and convincing reason 10 to reject plaintiff's testimony because the ALJ did not consider why the claimant did not seek or 11 obtain treatment)). 12 The ALJ failed to properly consider the conservative nature of Plaintiff’s treatment. 13 Nowhere in the transcript of the hearing does the ALJ inquire as to the conservative nature of 14 Plaintiff’s treatment or why Plaintiff did not undergo a more aggressive treatment plan. AR at 15 36-53. Similarly, the ALJ’s opinion mentions that Plaintiff’s treatment was conservative but does 16 not address any explanations or excuses provided by Plaintiff for the conservative treatment. 17 Id. at 17-28. This failure by the ALJ was an error. See Rhea L. v. Comm’r of Soc. Sec., 2024 18 WL 5244402, at *3 (W.D. Wash., Dec. 30, 2024) (“[t]o the extent the ALJ found Plaintiff's 19 treatment was conservative, the ALJ erred by failing to inquire as to why Plaintiff did not seek 20 further treatment for her conditions) (citing SSR 16-3p); see also Eitner, 835 F. at 933 21 (“[m]oreover, the ALJ failed to consider possible reasons why Claimant did not seek or obtain 22 treatment, including the possible lack of effective treatment for fibromyalgia and the manner in 23 which fibromyalgia interacted with his other impairments); see also Nestor S. v. Kijakazi, 2023 24 WL 8007106, at *3 (N.D. Cal., Nov. 16, 2023) (“[e]ven if such treatment could be deemed 25 ‘conservative,’ conservative medical treatment can only be used as a basis for discounting a 26 claimant's testimony where the ALJ identifies the more aggressive treatment options that were 27 available and appropriate and considers the reasons the claimant did not pursue more aggressive 1 The ALJ also did not identify any more aggressive treatments that Plaintiff should have 2 pursued or any recommended treatments that Plaintiff refused to undergo. AR at 17-29. See 3 Robert U. v. Kijakazi, 2022 WL 326166, at *5 (D. Or., Feb. 3, 2022) (noting that “an ALJ should 4 account for whether there is further effective treatment that would benefit the individual” where 5 the ALJ “did not identify any possible further effective treatment that Plaintiff could have pursued 6 or any treatment recommended by any of Plaintiff's medical providers that Plaintiff refused.”) 7 (quoting Torres v. Kijakazi, 2021 WL 5638008, at *2 (9th Cir. Dec. 1, 2021) (citing SSR 16-3p) 8 and citing Lapeirre-Gutt v. Astrue, 382 Fed. App'x 662, 664 (9th Cir. 2010) (“While Lapeirre-Gutt 9 has not undergone any surgery since that time, the record does not reflect that more aggressive 10 treatment options are appropriate or available. A claimant cannot be discredited for failing to 11 pursue non-conservative treatment options where none exist.”); and Oliverio v. Colvin, 2015 WL 12 1894299, at *6 (C.D. Cal. Apr. 27, 2015) (“The ALJ failed to articulate what, if any, other 13 treatment was currently recommended or available for plaintiff's physical and mental 14 impairments.”)). 15 Plaintiff argues that he received trigger point injections which is not a conservative form 16 of treatment and that he refrained from more aggressive treatments in the form of medication 17 due to his history of suicidal ideation, prior suicide attempts, and fentanyl use. Mot. at 20; see 18 also AR at 1916-1917 (June 23, 2022 patient note stating that Plaintiff was in the office for a 19 Trigger Point Steroid Injection in his lower back for mid and lower back pain and that the 12 20 weeks of physical therapy only offered short term relief). Plaintiff notes that Plaintiff’s doctor 21 recommended implanting a spinal cord stimulator to aid in controlling Plaintiff’s pain without the 22 use of stronger narcotics. Id.; see also AR at 45 (“I saw in the record a reference to a possible 23 spinal cord stimulator; is there any plan to do that? Yes, sir. When would that happen? It’s 24 happening at the end of this month; I believe on the 30th” and “Supposed to see a movement 25 specialist next year, but I can’t get in to see anybody this year to see about possibly Botox 26 injections in my foot.”). Plaintiff’s fears of developing a drug addiction to stronger narcotics or 27 1 experiencing an adverse impact to his mental health are not unreasonable2 and the ALJ’s failure 2 to ask about and consider them was in error. See Steen v. Astrue, 2008 WL 4449602, at *8 3 (N.D. Cal., Sept. 29, 2008) (“In light of Plaintiff's history with pain killers and her laudable desire 4 to remain clean, the Court cannot agree that her failure to use more powerful pain medication 5 is an indication that her pain is not as severe as she states.”); see also Trevizo v. Berryhill, 871 6 F.3d 664, 680 n.8 (9th Cir. 2017) (noting that it was inappropriate for the ALJ “to factor against 7 [plaintiff’s] symptom testimony that she declined to take prescribed narcotics because she feared 8 addiction and instead took other medication that addressed her pain. Taken to its logical 9 conclusion, this could amount to a requirement that patients take any prescribed pain 10 medications, regardless of their addictive or dangerous qualities, simply to avoid being found to 11 have exaggerated pain.”). 12 Accordingly, the Court does not find that the conservative nature of Plaintiff’s treatment 13 is a clear and convincing reason for discounting Plaintiff’s subjective symptom testimony. 14 2. Inconsistent With The Objective Medical Evidence 15 A second reason provided by the ALJ for discounting Plaintiff’s subjective symptom 16 testimony is that it was “not entirely consistent with the medical evidence and other evidence in 17 the record during the period at issue in this decision.” AR at 23. 18

19 2 This is supported in the medical record. See AR at 471 (June 10, 2020 ER record regarding 20 Plaintiff’s drug overdose on Fentanyl while engaging in a suicide attempt); 1902 (Patient notes 21 from January 17, 2023 noting that Plaintiff reported an attempted suicide from last November and that Plaintiff had an Opioid Risk Tool Score of 7 due in part to a “history of overdose, history 22 of substance use disorder”); 1179 (Patient notes from June 28, 2022 “Of note, he has a hx of SI with 2 prior attempts and fentanyl use . . . . His mother and he are appropriately adamant 23 about no narcotic use”); 1286 (mental Health Services – Psychiatric/Medication Follow-Up 24 (Diagnosis including Alcohol Use Disorder and Opioid use disorder in remission and noting that Plaintiff was in court mandated substance abuse treatment); 1372 (Patient notes from October 25 5, 2022 noting that Plaintiff “became addicted to opiates during his knee surgeries” and that he “drank excessively in [t]he past and used fentanyl”); 826 (Progress Note from October 8, 2010 26 - outside the alleged period of disability - noting that Plaintiff reported a suicide attempt in 2008 27 with a Zoloft overdose); and 972-973 (Therapy Note from October 4, 2013 - outside the alleged period of disability - noting that Plaintiff was “picked up and put in detox, pt did not advise PO 1 The Ninth Circuit recently clarified the law governing how ALJs may consider objective 2 medical evidence and inconsistent statements. Smartt v. Kijakazi, 53 F.4th 489, 496 (9th Cir. 3 2022). In Smartt, among other arguments, the plaintiff appealed her denial of Social Security 4 disability insurance benefits on the grounds that the ALJ erred in discounting her subjective pain 5 testimony and self-reported limitations. Id. at 496-97. The plaintiff relied on Burch v. Barnhart, 6 400 F.3d 676 (9th Cir. 2005), to argue that an ALJ may not “reject a claimant's subjective 7 complaints based solely on lack of medical evidence to fully corroborate the alleged severity of 8 pain.” Smartt, 53 F.4th at 498 (quoting Burch, 400 F.3d at 680). The Smartt court clarified this 9 decision, holding that “[w]hen objective medical evidence in the record is inconsistent with the 10 claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” 11 Id. The court explained that prior Ninth Circuit decisions make clear that “an ALJ is not ‘required 12 to believe every allegation of disabling pain, or else disability benefits would be available for the 13 asking, a result plainly contrary to’ the Social Security Act” and contradiction with the medical 14 record is a sufficient basis for rejecting a claimant's subjective testimony. Id. at 499. 15 Here, the ALJ recapped Plaintiff’s testimony regarding his limitations, concluded there 16 were inconsistencies between Plaintiff’s alleged symptoms and the objective medical evidence 17 and other evidence in the record, and immediately discussed Plaintiff’s ailments and the medical 18 history in the record regarding those ailments. Id. at 23-25. The ALJ discussed Plaintiff’s spine 19 and reported back pain and then cited medical records showing twenty-four-degree rotary 20 thoracolumbar dextroscoliosis and early degenerative disc diseases, tenderness, and reduced 21 range of motion but also showing normal gait, a non-tender lumbar spine with full range of 22 motion, and no observable abnormalities. Id. at 23-24 (citing 2F at 9, 19, 22; 22F at 61, 146; 23 23F at 78; 25F at 166; 26F at 7, 27F at 41). The ALJ also noted Plaintiff’s knee pain and medical 24 records showing a history of surgeries, reduced range of motion, limited flexion, tenderness to 25 palpation, but no mediolateral or anteroposterior instability, and conservative treatment. Id. at 26 24 (citing 2F at 20; 10F at 5; 21F at 39; 27F at 191). The ALJ discussed Plaintiff’s peripheral 27 neuropathy and the related examinations which showed a limited range of motion in Plaintiff’s 1 Next, the ALJ discussed Plaintiff’s total left ear hearing loss, significant right ear hearing loss, 2 and word recognition scores along with his mental health history. Id. at 24-25. Finally, the ALJ 3 reviewed the findings of Plaintiff’s doctors and the State Agency doctors who reviewed Plaintiff’s 4 medical records. Id. at 25-26. 5 The Court has reviewed the cited documents and finds the ALJ’s summaries accurately 6 reflect the information set forth in the reports and the substance of Plaintiff’s testimony. The 7 ALJ considered Plaintiff’s testimony, compared the objective medical evidence to the claims, and 8 determined the evidence did not support the extent of Plaintiff’s subjective claims. Id. at 23- 9 26. The records and findings reported are substantial evidence in support of the ALJ’s decision. 10 Accordingly, the Court finds there is substantial evidence supporting the ALJ's conclusion that 11 the objective medical record is inconsistent with the self-reported limitations claimed by Plaintiff 12 and that this is a clear and convincing reason to discount Plaintiff’s subjective testimony. See 13 Smartt, 53 F.4th at 498. 14 3. Slight Signs and Symptoms 15 The ALJ also rejected Plaintiff’s subjective symptom testimony because it was 16 “inconsistent with comparatively slight signs and symptoms.” AR at 23. Plaintiff argues that 17 the ALJ failed to identify which of Plaintiff’s signs and symptoms were slight. Id.; see also Mot. 18 at 19. Defendant contends that the ALJ appropriately found Plaintiff’s signs and symptoms 19 were slight and inconsistent with the medical record because, for example, Plaintiff alleged that 20 he could only walk thirty yards and had difficulty reaching, standing, sitting, etc., but the medical 21 records showed normal gait, motor function, strength, and ability to move extremities. Oppo. 22 at 4-5. Defendant further contends that Plaintiff’s alternative interpretation of Plaintiff’s signs 23 and symptoms is insufficient to overturn the findings of the ALJ. 24 Immediately after finding that Plaintiff’s “statements about the intensity, persistence, and 25 limiting effects of symptoms [were] inconsistent with comparatively slight signs and 26 symptoms[,]” the ALJ set forth the analysis discussed above where he summarized Plaintiff’s 27 testimony, identified specific ailments, conditions, and limitations, and discussed the medical 1 not specifically list a symptom and then say it was slight, he identified Plaintiff’s symptoms - 2 back and spine pain, knee and foot pain, peripheral neuropathy, hearing loss, communication 3 issues, and mental health concerns - and then explained how the objective signs of the 4 conditions as explained by the medical evidence in the record were inconsistent with the limiting 5 effects of those conditions as described by Plaintiff. Id. The Court finds that this is sufficiently 6 specific and presents a clear and convincing reason supported by substantial evidence for the 7 ALJ’s finding. 8 4. Conclusion 9 For the reasons set forth above, the Court finds that the ALJ provided specific, clear, and 10 convincing reasons for discounting Plaintiff’s subjective pain and limitations and concludes there 11 is substantial evidence in the record supporting the ALJ’s decision. See Ahearn, 988 F.3d at 12 1117. As stated by the Ninth Circuit, “[t]he standard isn’t whether our court is convinced, but 13 instead whether the ALJ’s rationale is clear enough that it is has the power to convince.” Smartt, 14 53 F.4th at 499. Here, it does. Accordingly, this Court RECOMMENDS that Plaintiff’s challenge 15 to the ALJ’s determination regarding Plaintiff’s subjective symptom testimony be DENIED. 16 B. RFC Assessment 17 Plaintiff argues that the ALJ’s RFC assessment is deficient because it does not reflect the 18 total limiting effects of Plaintiff’s impairments and is based on independent findings of the ALJ. 19 Mot. at 6. Specifically, the RFC does not reflect Plaintiff’s knee and foot limitations, the record 20 does not support the ALJ’s finding that Plaintiff is able to perform work and communicate with 21 coworkers in an environment with moderate noise, and the RFC does not address Plaintiff’s 22 ability to communicate which the ALJ failed to evaluate. Id. at 8-12. 23 Defendant contends that “substantial evidence supports the [RFC] finding because it 24 included all alleged limitations supported by evidence while excluding those the ALJ reasonably 25 rejected.” Oppo. at 6. Defendant notes that an ALJ may exclude any limitations he finds 26 unreliable and unpersuasive. Id. 27 1. Legal Standard 1 limitations, based on all relevant evidence in the record. See 20 C.F.R. § 416.945(a)(1); 20 2 C.F.R. § 404.1545(a)(1). In making this finding, the ALJ must consider all of the claimant's 3 medically determinable impairments, including those that are non-severe. See 20 C.F.R. § 4 404.1545(a)(2); see also Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (quoting SSR 5 96-8P, 1996 WL 374184, at *5). The ALJ must assess a claimant's RFC “based on all of the 6 relevant medical and other evidence.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). In 7 conducting this analysis, the ALJ must consider the claimant's testimony regarding their 8 limitations, capabilities, and pain as well as other relevant evidence. Chaudhry v. Astrue, 688 9 F.3d 661, 670 (9th Cir. 2012); see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 10 2006); SSR 96-8P, 1996 WL 374184, at *5. The claimant “is ultimately responsible for providing 11 the evidence to be used in making the RFC finding,” but an ALJ has “a special duty to fully and 12 fairly develop the record and to assure that the claimant's interests are considered.” Widmark 13 v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (citations omitted). 14 In determining whether an ALJ committed error in assessing the RFC, the relevant inquiry 15 is whether the medical evidence supports the ALJ's finding. See Stubbs-Danielson v. Astrue, 16 539 F.3d 1169, 1173–74 (9th Cir. 2008) (holding the RFC assessment adequately captures 17 restrictions if it is consistent with the concrete limitations in the medical opinions); see also 18 Schneider v. Comm'r Soc. Sec. Admin., 433 Fed. Appx. 507, 509 (9th Cir. 2011) (concluding that 19 the ALJ's failure to address claimant's migraines was harmless because medical record did not 20 support finding that migraines would affect claimant's functioning at work). The court must defer 21 to the ALJ's RFC determination “if the ALJ applied the proper legal standard and his decision is 22 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 23 2. Knee and Foot Limitations 24 Plaintiff argues that the ALJ erred in failing to include Plaintiff’s knee and foot limitations 25 in his RFC. Mot. at 9. Plaintiff argues that this error is harmful and impacted steps four and 26 five of the ALJ’s analysis and, therefore, the ALJ’s decision should be reversed and Plaintiff’s 27 case remanded. Id. Plaintiff notes that the ALJ acknowledged Plaintiff’s history with knee and 1 Plaintiff argues this is an error since portions of Plaintiff’s treatment were not conservative and 2 others were conservative because of Plaintiff’s history with narcotics and suicidal ideation which 3 the ALJ should have considered. Id. 4 Defendant contends that the ALJ properly considered Plaintiff’s allegations of pain and 5 limited functioning and rejected them because they were inconsistent with the record. Oppo. 6 at 7. Therefore, the ALJ properly excluded those physical limitations from the RFC. Id. 7 Plaintiff replies that despite recognizing that “the record supplies ample evidence of 8 bilateral knee pain, tenderness, and reduced range of motion[,]” the ALJ failed to include any 9 limitations for Plaintiff’s knee and foot limitations which constitutes a fatal error. Reply at 2. 10 Although the ALJ’s decision is not entirely clear, the parties agree that the ALJ did not 11 include in the RFC any limitations related to Plaintiff’s knee and foot symptoms. Mot. at 9; Oppo. 12 at 7 (“the ALJ considered Plaintiff’s allegations of pain and limited functioning [in Plaintiff’s knee 13 and feet] and reasonably rejected them because they were inconsistent with the record 14 evidence); Reply at 2. In his analysis, the ALJ acknowledged Plaintiff’s symptoms related to his 15 knees and feet and discussed the medical evidence related to them. AR at 24. The ALJ 16 concluded that “[w]hile the record supplies ample evidence of bilateral knee pain, tenderness, 17 and reduced range of motion, the related symptoms have received conservative treatment 18 throughout the period under consideration.” AR at 24 (emphasis added). As set forth above, 19 the Court has determined that the ALJ erred in rejecting Plaintiff's subjective symptom testimony 20 due to the alleged conservative treatment. See supra, pp. 7-10. Accordingly, the ALJ's decision 21 to exclude knee and foot limitations from the RFC based on an erroneous rejection of Plaintiff’s 22 symptom testimony was not reasonable and the Court RECOMMENDS that Plaintiff’s motion 23 be GRANTED on this issue and the matter REMANDED. 24 3. Moderate Noise & Ability to Communicate 25 Plaintiff argues that the RFC limitation to moderate noise3 is not supported by the record

26 27 3 “The Selected Characteristics of Occupations (SCO) defines moderate noise as the noise in a department or grocery store.” Antoninija S-G. v. Commissioner, Social Security Administration, 1 and the ALJ “impermissibly interpreted raw medical data into functional terms without the 2 assistance of an expert.” Mot. at 10-11. Plaintiff notes that the ALJ’s finding that Plaintiff’s 3 hearing loss was a severe impairment but that he could communicate and take appropriate 4 precautions does not equate to Plaintiff being able to sustain work with his bilateral hearing loss. 5 Id. The ALJ’s failure to explain how he determined that Plaintiff could work in an environment 6 with moderate noise and still communicate and failure to ask the VE if “an individual with 7 complete hearing loss in the left ear and moderate to severe hearing loss in the right ear would 8 be able to perform [Plaintiff’s] past work and the jobs cited at step five” is an error. Id. at 11 9 (emphasis in original). 10 Defendant contends that the ALJ properly reviewed the medical evidence and formed a 11 conclusion when evaluating Plaintiff’s RFC and properly discounted the medical opinion finding 12 that Plaintiff’s speech was slow in rate and delivery. Oppo. at 7-8. 13 Plaintiff replies that Defendant fails to address the fact that the ALJ did not explain the 14 limitation to moderate noise or provide any support in the record for finding that Plaintiff could 15 perform frequently in an environment with moderate noise while still communicating with 16 coworkers, supervisors, and the public. Reply at 2. 17 The ALJ concluded that Plaintiff has the following severe impairments “degenerative disc 18 disease of the lumbar spine, degenerative joint disease of the bilateral knees, left ear deafness, 19 and right ear hearing loss (20 CFR 404.1520(c) and 416.920(c)).” Id. at 19. Plaintiff’s RFC 20 states that he 21 has hearing in only one ear and can hear sirens, alarms, warnings; he can communicate 22 with coworkers, supervisors, and the public, take appropriate precautions if there are audible warnings or alerts; he can frequently work in an environment with moderate noise 23 24 AR at 22. In reaching his finding that Plaintiff was deaf in the left ear and had right ear hearing 25 loss, the ALJ considered section B of listing 2.10 and found that Plaintiff did not meet the criteria 26

27 2024 WL 5320531, at *1 (D. Or., Nov. 26, 2024). 1 as “[a]ir and bone conduction studies have not produced results consistent with the 2 requirements of this listing.” Id. The ALJ noted that Plaintiff’s July 2021 word recognition test 3 which showed 12% recognition in the right ear was considered unreliable by the doctor as 4 Plaintiff was able to communicate without amplification and with masks being used that 5 prevented lip reading. Id. At that same appointment, however, the doctor noted that there had 6 been “significant worsening of hearing thresholds for the right ear” since Plaintiff’s previous 7 audiogram dated February 25, 2021. Id. at 650. The ALJ also noted that February 25, 2021 8 testing showed that hearing loss in Plaintiff’s right ear was “moderately-severe to profound” and 9 February 9, 2023 testing showed “moderate/moderately-severe mixed hearing loss” in Plaintiff’s 10 right ear. Id. at 24, 551, 1594-1595. Speech audiometry also from February 9, 2023 found 11 that Plaintiff had “excellent word recognition (100%) in the right ear and very poor (0%) in the 12 left.” Id. at 24, 1595. 13 On May 4, 2021, State Agency Consultant J. Pham reviewed Plaintiff’s records and found 14 that Plaintiff’s speaking was unlimited but that his hearing was limited in both ears and that 15 Plaintiff should “avoid constant exposure to loud noise and constant need for good hearing.” Id. 16 at 69-70, 89-90. On January 14, 2022, State Agency Consultant M. Amado M.D. reviewed 17 Plaintiff’s records and found that Plaintiff had limited hearing in his left ear, unlimited speaking, 18 and that he should avoid concentrated exposure to noise. Id. at 111-112, 132-133. The ALJ 19 found that Dr. Amado's reconsideration opinion was better supported by the evidence and more 20 "consistent with the nature and severity of [Plaintiff's] severe impairments and generally 21 persuasive." Id. at 26. The ALJ found that J. Pham's opinion was "less persuasive." Id. The 22 ALJ also discussed the opinion of Consultative Internal Medicine Examiner, Phong Dao, 23 D.O. Id. Dr. Doa acknowledged Plaintiff's total loss of hearing in his left ear and partial hearing 24 in his right ear but concluded that Plaintiff had no communicative limitations. Id. at 26, 807. The 25 ALJ found Dr. Dao's opinion persuasive. Id. at 26. 26 Plaintiff testified that he was deaf in his left ear and losing hearing in his right ear and 27 that he had plans to meet with the doctors about a possible left ear cochlear implant. Id. at 23. 1 to perform tasks and interact with others in the workplace setting.” Id. at 26. 2 An ALJ’s RFC determination need not reflect any particular provider’s opinion precisely. 3 See Turner v. Comm’r of Soc. Sec. Admin, 613 F.3d 1217, 1222- 23 (9th Cir. 2010) (where an 4 ALJ properly incorporated a physician’s observations in the RFC determination while 5 simultaneously rejecting the implications regarding Plaintiff’s inability to perform certain tasks). 6 Still, an ALJ cannot make medical judgments, only legal judgments. Duarte v. Saul, 2020 WL 7 5257597, at *5 (E.D. Cal. Sept. 3, 2020) (citing Day v. Weinberger, 522 F.2d 1154, 1156 (9th 8 Cir. 1975). Barring a few exceptions, an ALJ must have a doctor’s opinion of a claimant’s 9 functional capacity in order for there to be substantial evidence supporting the decisions.” Id. 10 (citing Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996) (“With 11 exceptions, . . . an ALJ, as a layperson, is not qualified to interpret raw data in a medical 12 record.”)). 13 In formulating an RFC, an ALJ cannot interpret raw medical data. See Day 522 F.2d at 14 1156 (the ALJ was not qualified as a medical expert and therefore could not permissibly go 15 outside record to consult medical textbooks for purpose of making his own assessment of the 16 claimant's physical condition); Nguyen v. Chater 172 F.3d 31, 35 (1st Cir.1999) (“As a lay 17 person, ..., the ALJ was simply not qualified to interpret raw medical data in functional terms 18 and no medical opinion supported the determination.”); Manso–Pizarro 76 F.3d at 17; Rohan 19 v. Chater 98 F.3d 966, 970 (7th Cir.1996) (“ALJs must not succumb to the temptation to play 20 doctor and make their own independent medical findings.”). Courts have considered MRIs, 21 radiological studies, and X-rays to be raw medical data. See Mack v. Saul, 2020 WL 2731032, at 22 *2 (E.D. May 26, 2020) (duty to develop where ALJ improperly determined RFC after considering 23 MRIs and radiological studies absent a doctor’s opinion on the effect on plaintiff’s ability to work 24 on a function-by-function basis). See also Escudero v. Comm’r of Soc. Sec., 2019 WL 4917634, 25 *2 (E.D. Cal. Oct. 4, 2019) (RFC not based on substantial evidence where the ALJ considered x- 26 rays and records indicating Plaintiff’s diabetes diagnoses post-dated the accepted physician’s 27 opinion on which the ALJ based the RFC). Such records generally reflect only the finding and 1 interpret. See Escudero, 2019 WL 4917634, at *2 (finding descriptions of medical documents 2 post-dating the physician’s opinions appear to be “very medical in nature and not susceptible to 3 a lay understanding.”). 4 Here, after considering the functional capacity findings of various doctors, the ALJ 5 concluded that Plaintiff is capable of frequently working in an environment with moderate noise. 6 AR at 22. The doctors’ findings are substantial evidence supporting the ALJ’s findings and 7 demonstrate that the ALJ did not arrive at Plaintiff’s RFC based on his own interpretation of the 8 raw medical data, but instead based on the functional findings of various doctors. Specifically, 9 Dr. Pham found that Plaintiff should “avoid constant exposure to loud noise and constant need 10 for good hearing.” Id. at 69-70, 89-90. The ALJ found that Plaintiff can frequently work in an 11 environment with moderate noise. Id. at 22. As Plaintiff correctly notes, frequently means one- 12 third to two-thirds of the time. Mot. at 16; see also SSR 83-10; SSR 83-14. Constant exposure 13 means more than two-thirds of the time, meaning the ALJ’s RFC was more conservative and 14 limiting than Dr. Pham’s. See Renee S. v. Commissioner of Social Security, 2021 WL 12177933, 15 at *2–3 (W.D. Wash., Oct. 12, 2021) (“an individual is “constantly” exposed to that activity or 16 condition when it exists more than two-thirds of the time”); see also SSR 83-10. Also, since 17 moderate/level three noise is quieter than loud noise,4 the ALJ’s RFC finding is again more 18 conservative and accommodating of Plaintiff’s limitations than Dr. Pham’s findings. The ALJ 19 found Dr. Pham’s opinion less persuasive in part because it was “inconsistent with the severity 20 of symptoms evidenced in the record, and d[id] not account for” all of Plaintiff’s limitations and 21 he accommodated for that by making Plaintiff’s RFC more restrictive with regards to his hearing. 22 AR at 26. While the ALJ found Dr. Pham’s opinion less persuasive than others, he did not 23 discount the entire opinion and the ALJ’s RFC findings are a reasonable interpretation of Dr. 24

25 4 “Appendix D to the SCO defines a level four work environment to have a ‘Loud’ noise level, 26 including a ‘can manufacturing department; large earth-moving equipment; [or] heavy traffic.’” 27 Glenn v. Commissioner of Social Security Administration, 2022 WL 15517829, at *3 (D. Ariz., Oct. 27, 2022). 1 Pham’s findings, which supports Defendant’s position that the ALJ did not simply interpret the 2 raw medical evidence in forming Plaintiff’s RFC. AR at 24. 3 Dr. Amado found that Plaintiff should avoid concentrated exposure to noise. Id. at 111- 4 112, 132-133. Concentrated exposure is not a term that is defined in the regulations or DOT. 5 See Daniel S. v. Berryhill, 2019 WL 1903384, at *9 (C.D. Cal., Apr. 26, 2019). However, several 6 cases have found that avoiding concentrated exposure does not mean avoiding all exposure. 7 Renee S., 2021 WL 12177933, at *2–3 (finding no error where ALJ interpreted the doctors’ 8 opinions that plaintiff needed to avoid concentrated exposure to environmental conditions to 9 mean that plaintiff could tolerate frequent exposure to those same conditions). “District courts 10 have come to different conclusions concerning whether a restriction involving a need to avoid 11 ‘concentrated exposure’ to environmental conditions constitutes a limitation regarding how often 12 an individual should be exposed to those conditions, and if so, whether such a restriction is 13 consistent with ‘frequent” exposure.’” Id. at *2–3 (W.D. Wash., Oct. 12, 2021) (citing Hamadi 14 v. Kijakazi, 2021 WL 3772181 at * 3 (D.N.M. Aug. 25, 2021) (citing forms utilized by agency 15 physicians, which indicate that “avoiding concentrated exposure” is a technical term used by the 16 Social Security Administration with a meaning equivalent to “permitting occasional exposure” 17 and that the term “avoid concentrated exposure” falls somewhere in between “no restriction” 18 and “moderate restrictions.”); Bernier v. Saul, 2019 WL 5296846 at *7-8 (D. Conn. Oct. 18, 19 2019) (finding that “avoid concentrated exposure” is the “least restrictive limitation,” unlike 20 “occasional” exposure, and an RFC limitation to “avoid concentrated exposure” is compatible 21 with performing jobs that require “frequent” environmental exposure); Alexy X. M. v. Saul, 2019 22 WL 3772189 at *8 (N.D. Cal. August 12, 2019) (finding that there “seems to be a tension” 23 between an RFC requirement that a claimant must avoid concentrated exposure to hazards and 24 a job requiring occasional exposure to hazards, because the term “concentrated” seems to refer 25 to the intensity, rather than the frequency, of exposure). Given this, the Court is unable to find 26 a clear conflict between the ALJ’s finding that Plaintiff can frequently be exposed to moderate 27 noise and Dr. Amado’s finding that Plaintiff should avoid concentrated exposure to noise (with 1 properly consider this limitation when forming the RFC which, on its face, does not conflict with 2 Dr. Amado’s findings. Regardless, the recommendation to avoid concentrated exposure to noise 3 is substantial evidence in support of the ALJ’s RFC finding with respect to Plaintiff’s hearing 4 limitations. 5 The ALJ’s conclusion that Plaintiff can tolerate frequent exposure to moderate noise was 6 reasonably drawn from the conclusions of Drs. Pham and Amado which serve as substantial 7 evidence supporting the ALJ’s findings. The ALJ did not interpret raw medical data to arrive at 8 his conclusion but instead, considered the functional capacity assessments of Drs. Pham and 9 Amado and properly incorporated them into a RFC for Plaintiff. Because the ALJ’s determination 10 that Plaintiff can frequently work in an environment with moderate noise is supported by 11 substantial evidence, the Court RECOMMENDS that Plaintiff’s motion be DENIED on this issue. 12 With respect to Plaintiff’s ability to communicate, the ALJ noted a February 2021 exam 13 that showed 100% word recognition in the right ear, an unreliable July 2021 word recognition 14 test showing 12% word recognition in the right ear, a reliable July 2021 finding that Plaintiff 15 could communicate without amplification and with the use of face masks, and a February 2023 16 exam showing 100% word recognition in the right ear and 0% in the left ear, and used these 17 findings to form the RFC. Id. at 22-24. The ALJ did not address Dr. Livesay's comment 18 regarding the slow rate and delivery of Plaintiff's speech and his articulation deviants for words 19 containing consonant blends and bilabial phenomes. Id. at 17-29; see also Mot at 12, Oppo. at 20 8. While the ALJ did note that he found Dr. Livesay's opinion unsupportable and unpersuasive, 21 the ALJ's comments were in the context of Dr. Livesay's opinions regarding Plaintiff's mental 22 health as Dr. Livesay conducted a psychiatric evaluation of Plaintiff and was not primarily focused 23 on Plaintiff's ability to hear and/or communicate due to his physical impairments. Id. at 26 24 (comparing Dr. Livesay's opinion to that of psychiatric examiner Dr. Nicholson and noting that 25 "the marked limitations in activities of daily living appear to allege[] physical limitations not 26 associated with mental impairments."). The ALJ also cited to the findings of State Agency 27 Consultants J. Pham and M. Amado that Plaintiff’s speaking ability was “unlimited.” Id. at 25, 1 recognition in his right ear and the findings of Drs. Pham and Amado that Plaintiff had no 2 speaking limitations is substantial evidence in support of the ALJ’s RFC finding regarding 3 Plaintiff’s ability to communicate. Accordingly, the Court RECOMMENDS that Plaintiff’s motion 4 be DENIED on this issue. 5 4. Mental Impairments 6 Plaintiff argues that after finding the opinions of doctors Nicholson and Koutrako 7 persuasive, the ALJ failed to consider Plaintiff’s mental impairments in the RFC. Mot. at 12. The 8 ALJ found that plaintiff had non-severe impairments of major depressive disorder and alcohol 9 use and mild limitations in each functional area of paragraph B, but the RFC does not include 10 any limitations accounting for these findings. Id. at 13. Additionally, the ALJ stated that a more 11 detailed assessment of Plaintiff’s mental limitations was needed but no such assessment 12 occurred. Id. 13 Defendant contends that the ALJ properly omitted Plaintiff’s alleged mental limitations 14 from the RFC because any limitations were non-severe. Oppo. at 8-9. 15 Plaintiff replies that Defendant’s position that the ALJ did not have to address Plaintiff’s 16 mental limitations because they were non-severe “is unsupported, as the Commissioner’s 17 regulations require that nonsevere impairments be considered in the RFC assessment.” Reply 18 at 3 (citing 20 C.F.R. 404.1545(e)). 19 “While mild mental impairment limitations need not be reflected in the RFC, it is 20 insufficient for an ALJ to make a ‘vague and conclusory assertion at step two that [the ALJ's] 21 subsequent RFC analysis reflects the degree of limitation that [the ALJ] has found in the 22 paragraph B mental function analysis.’” Montano v. Comm’r of Soc. Sec. Admin, 2022 WL 23 1617306, at *3 (D. Ariz., May 23, 2022) (internal citations omitted) (citing Slusher v. Comm'r 24 of Soc. Sec. Admin., 2022 WL 596801, at *5 (D. Ariz. Feb. 28, 2022) and quoting Michele M. v. 25 Saul, 2020 WL 1450442, at *7 (S.D. Cal. Mar. 25, 2020) (stating an ALJ must give some 26 indication that she considered the limiting effects of a non-severe mental impairment in the 27 RFC)). Similarly, while “ of ‘the limiting effects of all impairments’ does not 1 the non-severe impairment does not cause a significant limitation in the plaintiff's ability to 2 work,” the court may find error where it is unclear from ALJ’s opinion if “the ALJ considered 3 Plaintiff’s non-severe mental impairments and any corresponding limitations before assigning 4 Plaintiff an RFC without any mental restrictions.” Michele M., 2020 WL 1450442, at *7 (emphasis 5 in original) (quoting Medlock v. Colvin, 2016 WL 6137399, at *5 (C.D. Cal. Oct. 20, 2016)). 6 Here, it is clear that the ALJ considered the limiting effects of Plaintiff’s mental health 7 impairments in his RFC determination. In addition to including the boilerplate language 8 distinguishing between the Step Two analysis and the RFC assessment5, and stating that he has 9 considered all symptoms and the extent to which these symptoms can reasonably be accepted 10 as consistent with the objective medical evidence and other evidence,” the ALJ specifically 11 addressed medical records Plaintiff submitted with a prior claim for benefits showing a “history 12 of mental difficulties, including chronic major depression, mood disorder, and a 2008 suicide 13 attempt.” Id. at 25 (citing 12F at 8; 14F at 3; 17F at 5). The ALJ noted that Plaintiff’s mental 14 health treatment included prescriptions for Remeron and Zoloft and a history of substance use. 15 Id. The ALJ recognized the comments from Plaintiff’s mother who wrote that Plaintiff does not 16 handle stress or changes in routine well due to his anxiety. Id. (citing 5E, p.10). 17 The ALJ also addressed the findings of State Agency Medical Consultants, Alvin Smith, 18 Ph.D. and Stacy Koutrakos, Psy.D., and Consultive Psychiatric Examiners Gregory Nicholson, 19 M.D., and Jerry R. Livesay, Ph.D. Id. at 25-26. Dr. Smith “determined that [Plaintiff] had mild 20 limitations understanding, remembering, or applying information, in concentration, persistence, 21 or maintaining pace, and adapting or managing oneself” and no limitation in interacting with 22 others. Id. at 25 (citing 1A at 12; 2A at 12). Dr. Koutrakos determined that Plaintiff had “mild 23 limitations in all four areas of functioning considered in the ‘paragraph B’ criteria” Id. citing (5A 24 25 5 “The limitations identified in the ‘paragraph B’ criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the 26 sequential evaluation process. The mental residual functional capacity assessment used at steps 27 4 and 5 of the sequential evaluation process requires a more detailed assessment. The following residual functional capacity assessment reflects the degree of limitation the undersigned has 1 at 12; 6A at 11). The ALJ found that Dr. Koutrakos’ opinion was more greatly supported by the 2 medical record and objective signs and more consistent with Plaintiff’s reported symptoms and 3 the findings of the consultative psychiatric examinations, and therefore more persuasive, than 4 Dr. Smith’s opinion. Id. 5 Dr. Gregory Nicholson examined Plaintiff on December 29, 2021. Id. at 813-817. Plaintiff 6 reported that he cooked meals, did laundry, and had “no difficulty with dressing, bathing, or 7 hygiene.” Id. at 814. Dr. Nicholson diagnosed Plaintiff with Alcohol Use Disorder (in remission), 8 Unspecified Depressive Disorder, and Unspecified Anxiety Disorder. Id. at 816. He found that 9 Plaintiff “had mild limitations of the ability to interact with coworkers and the public, maintain 10 concentration, attention, persistence, and pace, accept instructions from supervisors, and 11 maintain regular attendance, and perform work activities without additional supervision.” Id. at 12 26 (citing 11F, p. 6-7).” The ALJ found this opinion to be persuasive as it was supported by a 13 personal examination and consistent with the totality of the medical evidence. Id. 14 Dr. Livesay examined Plaintiff on June 22, 2021. Id. at 634. Plaintiff reported that he 15 rarely cooked, did laundry when not in pain, bathed when not in pain, and changed his clothes 16 two or three times per week. Id. at 636-637. Dr. Livesay diagnosed Plaintiff with Major 17 Depressive Disorder with Anxious Distress, moderately severe with anhedonia and Possible 18 Alcohol Use Disorder, moderate. Id. at 638. He concluded that Plaintiff “had [a] mild impairment 19 of the ability to follow detailed instructions and comply with job rules, a moderate limitation of 20 the ability to respond to changes and work pressure in a routine work setting, and a marked 21 impairment of activities of daily living.” Id. at 26 (citing 5F, p. 7). The ALJ found that the 22 limitations noted by Dr. Livesay were inconsistent with his examination of Plaintiff and the 23 opinion of Dr. Nicholson despite the examinations only being six months apart. Id. The ALJ 24 concluded that Dr. Livesay’s opinion was unpersuasive and unsupported by the medical 25 evidence. Id. 26 The opinions of Drs. Smith, Nicholson and Koutrakos provide substantial evidence in 27 support of the ALJ’s determination that Plaintiff’s mental impairments were mild. Contrary to 1 incorporate mental limitations into his RFC, “there is no requirement that mild limitations must 2 be incorporated in the RFC, or that the ALJ must explain the omission thereof.” Stoy v. O'Malley, 3 2024 WL 4752438, at *4 (E.D. Cal., Nov. 12, 2024); see also Woods v. Kijakazi, 32 F.4th 785, 4 794 (9th Cir. 2022) (finding no error where the ALJ assessed mild limitations in two of the four 5 functional categories but included no mental limitations in the RFC). Plaintiff does not argue 6 that the ALJ failed at step two in finding only mild mental limitations or identify specific evidence 7 the ALJ failed to consider. Mot. 8 Plaintiff also argues that the ALJ erred because he stated that a more detailed assessment 9 of Plaintiff’s mental limitation was required but no such assessment occurred. Mot. at 13; Reply 10 at 3. Defendant does not address this issue. Oppo. 11 The language Plaintiff is referring to is form language that is used in countless ALJ 12 opinions when explaining the relationship between the paragraph B criteria, the steps of the 13 sequential evaluation process, and the RFC. The ALJ stated: 14 The limitations identified in the ‘paragraph B’ criteria are not a residual functional 15 capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process. The mental residual functional 16 capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment. The following residual functional capacity 17 assessment reflects the degree of limitation the undersigned has found in the 18 “paragraph B” mental function analysis. There are not ‘paragraph C’ criteria present. 19 20 AR at 22. In accordance with this statement, the ALJ engaged in a further assessment of 21 Plaintiff’s mental limitations when forming the RFC. Id. at 25-26. As stated above, this included 22 reviewing evidence submitted with Plaintiff’s prior claim for benefits, reviewing the adult function 23 reports submitted by Plaintiff and his mother, and considering the medical opinions of Drs. 24 Smith, Koutrakos, Nicholson, and Livesay. Id. Accordingly, the Court does not find that the ALJ 25 erred by failing to conduct a more detailed assessment. 26 Because limitations due to mild mental impairments are not required to be in the RFC 27 and because the ALJ considered Plaintiff’s non-severe mental impairments and any limiting 1 issue be DENIED. See Saul R. v. O'Malley, 2024 WL 3641041, at *2-3 (C.D. Cal., July 3, 2024) 2 (“the ALJ was not required to include the mild mental limitations in the RFC because, as the ALJ 3 noted, the record did not reflect that Plaintiff's mental impairment caused a significant limitation 4 in his ability to work.”) (citing McIntosh v. Berryhill, 2018 WL 3218105, at *4 (C.D. Cal. June 29, 5 2018) (because ALJ concluded, based on the record, that mental impairment was non-severe 6 and caused no more than minimal restrictions, there was no requirement to include it in the 7 RFC) and Ball v. Colvin, 2015 WL 2345652, at *2-3 (C.D. Cal. May 15, 2015) (ALJ did not err in 8 not including mild mental limitations in RFC where ALJ's finding that mental limitations do not 9 cause more than minimal limitations in Plaintiff's ability to perform basic mental activities was 10 supported by the record)). 11 CONCLUSION 12 For the reasons set forth above, this Court RECOMMENDS GRANTING IN PART 13 Plaintiff’s Motion, REVERSING the ALJ’s decision, and REMANDING for further proceedings 14 to address the errors noted in this Order.6 15 IT IS HEREBY ORDERED that any written objections to this Report and 16 Recommendation must be filed with the Court and served on all parties no later than June 30, 17 2025. The document should be captioned “Objections to Report and Recommendation.” 18 19 6 Because the Court is recommending remanding for further development and consideration of the record, the Court will not rule on Plaintiff’s argument that “[t]he step four and five findings 20 are not supported by substantial evidence because the RFC limits Mr. Salazar to only “frequent” 21 work in moderate noise level environments, making him unable to perform any work on a full- time basis.” See Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. 22 Cal. 2008) (“[The] Court need not address the other claims plaintiff raises, none of which would provide plaintiff with any further relief than granted, and all of which can be addressed on 23 remand.”); see also Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand 24 the case to the ALJ for the reasons stated, we decline to reach [plaintiff's] alternative ground for remand.”); Newton v. Colvin, 2015 WL 1136477, at *6 n.4 (E.D. Cal. Mar. 12, 2015) (“As the 25 matter must be remanded for further consideration of the medical evidence, the court declines to address plaintiff's remaining arguments.”); and Berenisia Madrigal v. Saul, 2020 WL 58289, 26 at *7 (E.D. Cal., Jan. 6, 2020) (“Having found that remand is warranted, the Court declines to 27 address Plaintiff's remaining arguments that the ALJ erred in rejecting medical opinion evidence and failing to develop the record). 1 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court 2 ||and served on all parties no later than July 14, 2025. The parties are advised that failure to 3 || file objections within the specified time may waive the right to raise those objections on appeal 4 || of the Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 5 1153, 1157 (9th Cir. 1991). 6 IT IS SO ORDERED. 7 ||Dated: 6/16/2025 x, be Mg ore 8 Hon. Barbara L. Major 9 United States Maqistrate Judde

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28