1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SANDRA S., Case No.: 21cv1248-AJB-MDD
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION RESOLVING JOINT MOTION FOR JUDICIAL 14 KILOLO KIJAKAZI,1 Acting REVIEW AND AFFIRMING THE 15 Commissioner of Social Security, COMMISSIONER’S FINAL DECISION 16 Defendant.
17 [ECF No. 17] 18 19 Sandra S. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) 20 for judicial review of the final administrative decision of the Commissioner of 21 the Social Security Administration (“Commissioner”) regarding Plaintiff’s 22 application for supplemental security income benefits. (ECF No. 1). The ALJ 23 found that Plaintiff has not been disabled since March 11, 2015, the date the 24 25 26 1 Kilolo Kijakazi became Acting Commissioner of Social Security on July 9, 2021 and is therefore substituted for Andrew M. Saul as the Defendant in this action. See 42 U.S.C. § 1 application was filed. (AR at 25).2 On July 11, 2022, the parties filed a Joint 2 Motion for Judicial Review of the ALJ’s decision. (ECF No. 17). 3 For the reasons expressed herein, the Court RECOMMENDS the 4 Commissioner’s decision be AFFIRMED. 5 I. BACKGROUND 6 Plaintiff was born in April 1963. (AR at 37). Accordingly, Plaintiff was 7 categorized by the ALJ as an individual closely approaching advanced age. 8 (Id.). 9 Plaintiff protectively filed an application for supplemental security 10 income on March 11, 2015. (AR at 25). Plaintiff alleges a disability 11 beginning on March 1, 2014. (Id.). After her application was denied initially 12 and upon reconsideration, Plaintiff requested an administrative hearing 13 before an administrative law judge (“ALJ”). (Id.). An administrative hearing 14 was held on September 15, 2017. (AR at 49-83). Plaintiff appeared and was 15 represented by attorney Susan Fox at the hearing. (AR at 51). Testimony 16 was taken from Plaintiff and David Dettmer, an impartial vocational expert 17 (“VE”). (See AR at 49-83). On January 11, 2018, the ALJ issued a decision 18 denying Plaintiff’s claims.3 (AR at 22-39). 19 On January 11, 2018, Plaintiff sought review with the Appeals Council. 20 (AR at 16). On November 28, 2018, the Appeals Council denied her request 21 for review and declared the ALJ’s decision to be the final decision of the 22 Commissioner of Social Security. (AR at 16-20). Plaintiff filed this action on 23
24 25 2 “AR” refers to the Certified Administrative Record filed on November 30, 2021. (ECF No. 7). 26 3 As the ALJ’s decision explains, Plaintiff previously filed a Title XVI application in 2009. Her prior claims were denied, and the ALJ found no basis to reopen the prior application. 1 July 9, 2021, pursuant to the Appeals Council’s extension of her deadline to 2 file a civil action. (ECF No. 1; AR at 1). 3 II. DISCUSSION 4 A. Legal Standard 5 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 6 unsuccessful applicants to seek judicial review of a final agency decision of 7 the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial 8 review is limited in that a denial of benefits will not be disturbed if it is 9 supported by substantial evidence and contains no legal error. Id.; see also 10 Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 11 Substantial evidence “is a ‘term of art’ used throughout administrative 12 law to describe how courts are to review agency factfinding.” Biestek v. 13 Berryhill, 139 S. Ct. 1148, 1154 (2019). Courts look “to an existing 14 administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to 15 support the agency’s factual determinations.” Id. “[T]he threshold for such 16 evidentiary sufficiency is not high. Substantial evidence, [the Supreme 17 Court] has said, is ‘more than a mere scintilla.’ It means—and means only— 18 ‘such relevant evidence as a reasonable mind might accept as adequate to 19 support a conclusion.’” Id. The Ninth Circuit explains that substantial 20 evidence is “more than a mere scintilla but may be less than a 21 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012) 22 (quotation marks and citations omitted), superseded by regulation on other 23 grounds. 24 An ALJ’s decision is reversed only if it “was not supported by 25 substantial evidence in the record as a whole or if the ALJ applied the wrong 26 legal standard.” Id. “To determine whether substantial evidence supports 1 the evidence both supporting and detracting from the agency’s conclusion.” 2 Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citing Mayes v. 3 Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The Court “may not reweigh 4 the evidence or substitute [its] judgment for that of the ALJ.” Id. “The ALJ 5 is responsible for determining credibility, resolving conflicts in medical 6 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 7 1039 (9th Cir. 1995). “When the evidence can rationally be interpreted in 8 more than one way, the court must uphold the [ALJ’s] decision.” Mayes, 276 9 F.3d at 459. 10 Section 405(g) permits a court to enter a judgment affirming, modifying 11 or reversing the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing 12 court may also remand the matter to the Social Security Administration for 13 further proceedings. Id. 14 B. Summary of the ALJ’s Findings 15 In rendering his decision, the ALJ followed the Commissioner’s five-step 16 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the 17 ALJ found that Plaintiff had not engaged in substantial gainful activity since 18 March 11, 2015. (AR at 27). 19 At step two, the ALJ found that Plaintiff had the following severe 20 impairments: “degenerative disc disease of the spine status post trauma; 21 right shoulder impingement with trapezius muscle strain, tendonitis, and 22 fraying; and depressive disorder with anxiety.” (Id.). 23 At step three, the ALJ found that Plaintiff did not have an impairment 24 or combination of impairments that met or medically equaled one of the 25 impairments listed in the Commissioner’s Listing of Impairments. (AR at 29- 26 31). 1 Next, after considering the entire record, the ALJ determined that 2 Plaintiff had the residual functional capacity (“RFC”) to perform light work 3 with the following limitations: 4 [E]xcept the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; she can sit for 6 hours in an 8-hour 5 workday with normal breaks; she can stand and/or walk for 6 hours 6 in an 8-hour workday with normal breaks; she is unlimited in pushing and pulling other than as stated for lifting and carrying; 7 she is unlimited in climbing ramps and stairs, balancing, stooping, 8 and kneeling; she can occasionally climb ladders, scaffolds, and ropes; she can frequently crawl; she can occasionally perform 9 overhead reaching with the right upper extremity; she can carry 10 out unskilled tasks at all appropriate reasoning levels per the Dictionary of Occupational Titles and can perform these tasks at an 11 adequate pace for an 8-hour workday with normal breaks; she can 12 occasionally interact with co-workers and supervisors, but can have no contact with the general public; she can tolerate only occasional 13 changes in a work setting; she cannot do head turning side-to-side 14 or up-and-down more than 30 degrees from neutral without having to adjust her body movements by turning her torso; and she can 15 only do occasional forceful gripping with her right hand. 16 (AR at 31). 17 The ALJ said that his RFC assessment was based on all the evidence 18 and the extent to which Plaintiff’s symptoms can reasonably be accepted as 19 consistent with the objective medical evidence and other evidence. (Id.). The 20 ALJ also stated that he considered the opinion evidence in accordance with 21 the requirements of 20 C.F.R. § 416.927. (Id.). 22 At step four, the ALJ determined that Plaintiff was unable to perform 23 her past relevant work as a Groundskeeper. (AR at 37). Because Plaintiff’s 24 past relevant work was unskilled, he explained that transferability of job 25 skills was not an issue in the case. (Id.). 26 For the purposes of his step five determination, the ALJ accepted the 1 (DOT No. 239.567-060); Mail Clerk (DOT No. 209.687-026); and Machine 2 Operator (DOT No. 207.685-014) as jobs Plaintiff could perform and which 3 exist in significant numbers in the national economy. (Id.). The ALJ 4 therefore found that Plaintiff was not disabled. (AR at 38-39). 5 C. Issues in Dispute 6 The issues in dispute are: (1) whether the ALJ erred by failing to 7 consider whether to use an older age category in a borderline situation; and 8 (2) whether the ALJ erred by ignoring mental limitations contained in the 9 consultative psychiatric evaluation, to which he afforded great weight. (See 10 ECF No. 17 at 15). 11 1. Consideration of Whether to Use an Older Age 12 Category in a Borderline Situation 13 Plaintiff argues the ALJ failed to consider the borderline age situation 14 because he did not (i) mention Plaintiff’s age on the date of his decision, (ii) 15 cite to the relevant subsection of 20 C.F.R. § 404.1563, or (iii) discuss 16 borderline age hypotheticals with the vocational expert. (ECF No. 17 at 17). 17 The Commissioner argues the hearing transcript and the ALJ’s decision 18 reflect that the ALJ considered Plaintiff’s borderline age situation. (Id. at 19 23). 20 A borderline age situation occurs when a claimant is within a few days 21 or a few months of reaching an older age category. Lockwood v. Comm’r Soc. 22 Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). “Although an ALJ is 23 required by regulation to consider whether to use an older age category in a 24 borderline situation, there is no requirement that the ALJ explain in her 25 written decision why she did not use an older age category.” Id. at 1070 26 (citing 20 C.F.R. § 404.1563(b)). 1 In Lockwood, the court determined that the ALJ satisfied the regulation 2 and did not “apply the age categories mechanically” where she cited to § 3 404.1563, mentioned the plaintiff’s date of birth and age of 54 on the date of 4 the decision, and “‘evaluat[ed] the overall impact of all the factors of [the 5 plaintiff’s] case’ when the ALJ relied on the testimony of a vocational expert 6 before she found [the plaintiff] was not disabled.” (Id.) (citing 20 C.F.R. § 7 404.1563(b)). The Lockwood court expressed that the ALJ’s decision showed 8 knowledge of her discretion to use the older age category under 20 C.F.R. § 9 404.1563(b). (Id. at 1072 n.3) (noting that it is presumed “that ALJs know 10 the law and apply it in making their decisions.”). The Ninth Circuit found 11 that the “ALJ did not err when she did not address in her written decision 12 the fact that [plaintiff] was just over one month from being a person of 13 advanced age.” Id. at 1070 (noting that the ALJ was clearly aware that 14 plaintiff was just shy of her 55th birthday). 15 Plaintiff tries to distinguish Lockwood by arguing that the ALJ here 16 failed to reference Plaintiff’s age on the date of the ALJ’s decision. (ECF No. 17 17 at 17). This distinction is unavailing because the ALJ’s decision states 18 that Plaintiff “is a 54 year-old woman.” (AR at 32). The Commissioner also 19 appears to have overlooked the ALJ’s acknowledgment of Plaintiff’s age on 20 the decision date. (See ECF No. 17 at 23-24). 21 At the hearing in Plaintiff’s case, the ALJ said, “I was thinking about 22 the fact that she’s about to hit 55 --” “And when she hits 55, she’s got a pretty 23 strong case . . .” (AR at 52-53). Accordingly, the ALJ was aware of the 24 implications of Plaintiff turning 55. He explained to Plaintiff, “Under our 25 rules, that 55th birthday is kind of a magical point in a case like yours.” (AR 26 at 81). “[Y]ou would win under what we call a grid rule at that point.” (Id.). 1 of course, consider the possibility of a . . . . non-mechanical application of the 2 rules, but I think we’re actually too far out.” (AR at 80-81). On the decision 3 date, Plaintiff was just over three months short of age 55. The ALJ’s decision 4 included her date of birth. (AR at 37). The ALJ also referenced the 5 regulations regarding age as a vocational factor. (Id.). 6 Though Plaintiff argues that the regulations were not necessarily cited 7 to address the borderline age issue, Plaintiff provides no authority that this 8 ambiguity amounts to error when the ALJ discussed the borderline age issue 9 at the hearing and noted Plaintiff’s age on the date of the decision. After all, 10 “there is no requirement that the ALJ explain in her written decision why 11 she did not use an older age category.” See Lockwood, at 1070. 12 Lastly, Plaintiff argues the lack of discussion of borderline age in the 13 vocational expert testimony supports that the ALJ did not consider the 14 borderline age situation. (ECF No. 17 at 19). As the cases cited by Plaintiff 15 acknowledge, “Lockwood is not explicit as to the issue of how the ALJ’s 16 reliance on the VE’s testimony in that case showed that the ALJ considered 17 the borderline age issue.” Durkee v. Astrue, No. CV 11-6564-PLA, 2012 U.S. 18 Dist. LEXIS 108398, at *25 (C.D. Cal. Aug. 2, 2012); Parks v. Colvin, No. CV 19 15-00623-RAO, 2015 U.S. Dist. LEXIS 167806, at *9 (C.D. Cal. Dec. 14, 20 2015); Janice B. R. v. Saul, No. 2:18-cv-06039-AFM, 2019 U.S. Dist. LEXIS 21 148782, at *10 (C.D. Cal. Aug. 29, 2019). Moreover, these cases can be 22 distinguished because in each, the ALJ failed to mention the plaintiff’s age on 23 the date of the ALJ’s decision. 24 Here, the ALJ noted Plaintiff’s age of 54 on the date of his decision and 25 stated at the hearing that he would consider a non-mechanical application of 26 the age categories. (AR at 32, 80-81). Accordingly, the Court finds that 1 older age category, and therefore did not err. 2 2. Mental Limitations from Dr. Clark’s Evaluation 3 Plaintiff argues that the ALJ erred by failing to incorporate in 4 Plaintiff’s RFC all the limitations expressed in the psychiatric consultative 5 examiner’s opinion. (ECF No. 17 at 28). In relevant part, Dr. Clark opined 6 that Plaintiff 1) has moderate limitations in her ability to concentrate for at 7 least two-hour increments at a time, to maintain a regular work schedule; 8 and 2) has moderate limitations in her ability to sustain an ordinary routine 9 without sustained supervision, and “would have difficulty attending work 10 every day.” (AR at 351). With respect to Plaintiff’s nonexertional RFC, the 11 ALJ determined that Plaintiff: 12 “[C]an carry out unskilled tasks at all appropriate reasoning levels per the Dictionary of Occupational Titles and can perform these 13 tasks at an adequate pace for an 8-hour workday with normal 14 breaks; she can occasionally interact with co-workers and supervisors, but can have no contact with the general public; she 15 can tolerate only occasional changes in a work setting[.]” 16 (AR at 31). 17 Plaintiff argues that the RFC restricting Plaintiff to unskilled tasks did 18 not account for the limitations Dr. Clark expressed in her opinion and 19 contends that the ALJ was required to either include limitations regarding 20 concentration and sustaining a routine/attending work in the RFC or 21 specifically explain why he rejected these limitations. (ECF No. 17 at 30). 22 “A claimant’s residual functional capacity is what he can still do despite 23 his physical, mental, nonexertional, and other limitations.” Cooper v. 24 Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir.1989) (citing 20 C.F.R. § 404.1545). 25 The ALJ considers all relevant evidence, including residual functional 26 capacity assessments made by consultative examiners, State agency 1 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also 20 C.F.R. §§ 404.1513(c), 2 416.913(c). 3 “[A]n RFC that fails to take into account a claimant’s limitations is 4 defective.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 5 2009). ALJs “must explain why significant, probative evidence has been 6 rejected.” Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1395 (9th 7 Cir. 1984) (internal quotation marks and citation omitted). “[T]he 8 Commissioner must provide clear and convincing reasons for rejecting the 9 uncontradicted opinion of an examining physician. . . . [T]he opinion of an 10 examining doctor, even if contradicted by another doctor, can only be rejected 11 for specific and legitimate reasons . . . .” Turner v. Comm’r of Soc. Sec., 613 12 F.3d 1217, 1222 (9th Cir. 2010) (citing Lester v. Chater, 81 F.3d 821, 830-31 13 (9th Cir. 1995)). 14 “However, the RFC need not quote each and every finding, so long as 15 the RFC captures the limitations in the medical opinion.” Shawn P. v. 16 Kijakazi, No. 20cv1054-MSB, 2021 U.S. Dist. LEXIS 187160, at *7-8 (S.D. 17 Cal. Sep. 28, 2021); see also, Rounds v. Comm’r SSA, 807 F.3d 996, 1006 (9th 18 Cir. 2015) (explaining that the ALJ is responsible for translating and 19 incorporating medical findings into a succinct RFC). For example, “the ALJ 20 may translate a claimant’s moderate limitation in concentration, persistence 21 or pace into unskilled work if there is a medical opinion to support her ability 22 to perform unskilled work.” Kramer v. Kijakazi, No. 20cv2065-GPC(AHG), 23 2022 U.S. Dist. LEXIS 53738, at *40-41 (S.D. Cal. Mar. 24, 2022) (citing 24 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)). 25 As Plaintiff acknowledges, the ALJ’s decision did not expressly reject or 26 discount any portion of Dr. Clark’s opinion. In fact, the ALJ gave “great 1 that Plaintiff had a “moderate limitation interacting with others; moderate 2 limitation sustaining an ordinary routine without sustained supervision; and 3 moderate limitation concentrating for two-hour increments at a time.” (AR at 4 35). The ALJ explains that his RFC finding incorporates Dr. Clark’s opinion 5 as well as the opinions of both State agency psychological consultants. (Id. at 6 36). The ALJ also gave “great weight” to the State agency psychological 7 consultants’ opinions that Plaintiff had a “mild limitation with activities of 8 daily living; moderate limitation with social functioning; moderate limitation 9 with concentration, persistence, or pace, and could perform only simple tasks 10 with limited public contact.” (Id.). The ALJ stated that these opinions were 11 “reasonably consistent with the examination and opinion of the consultative 12 examiner.” (Id.). 13 Accordingly, the threshold issue is whether the ALJ implicitly rejected 14 the moderate limitations opined by Dr. Clark regarding Plaintiff’s ability to 15 “concentrate for at least two-hour increments at a time, in order to maintain 16 a regular work schedule” and her ability to “sustain an ordinary routine 17 without sustained supervision,” specifically, her “difficulty attending work 18 every day.” If the Court finds these limitations were not rejected, then no 19 further reasoning was required by the ALJ. 20 a. Ability to Concentrate 21 The Commissioner argues this case is controlled by the Ninth Circuit’s 22 decision in Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008). There, 23 the Ninth Circuit held that the ALJ’s RFC determination that “the claimant 24 retains the residual functional capacity to perform simple, routine, repetitive 25 sedentary work, requiring no interaction with the public” adequately 26 incorporated “deficiencies in concentration, persistence, or pace.” Id. at 1173. 1 borderline intellectual functioning and said she showed good persistence, but 2 a slow pace in thought and action.” Id. at 1171. Although the examining 3 doctor did not assess whether that plaintiff could perform unskilled work on a 4 sustained basis, the State agency reviewing psychologist’s report “identified 5 ‘a slow pace, both in thinking & actions’ and several moderate limitations in 6 other mental areas, [and] ultimately concluded Stubbs-Danielson retained 7 the ability to ‘carry out simple tasks[.]’” Id. at 1173. The Ninth Circuit 8 determined that the “ALJ translated Stubbs-Danielson’s condition, including 9 the pace and mental limitations, into the only concrete restrictions available 10 to him—[the State agency reviewing psychologist’s] recommended restriction 11 to ‘simple tasks.’” Id. at 1174. 12 Here, Plaintiff’s examining psychologist and both State agency 13 reviewing psychologists determined that Plaintiff has moderate limitations 14 regarding concentration and persistence. (AR at 95, 114, 351). The 15 examining psychologist, Dr. Clark, supplied a brief statement which rated 16 Plaintiff’s limitations in six categories. (AR at 351). Without elaborating 17 further, Dr. Clark opined, “Ability to concentrate for at least two-hour 18 increments at a time, in order to maintain a regular work schedule: 19 Limitations: Moderate based on exam.” (Id.). The assessments of the 20 reviewing psychologists provided greater detail regarding Plaintiff’s capacity 21 for sustained concentration and persistence. Both reviewing psychologists 22 explained: “Claimant would be able to maintain attention and concentration 23 for at least two hours at a time as required to perform simple tasks, 24 sufficiently to complete an 8 hour day and a 40 hour week.” (AR at 96, 115) 25 (emphasis added). The ALJ explained that he “incorporated the opinions of 26 both the consultative examiner and the State agency psychological 1 Regarding limitations with concentration, Plaintiff does not attempt to 2 distinguish the Ninth Circuit’s decision in Stubbs-Danielson. Like in Stubbs- 3 Danielson, it appears the ALJ appropriately translated Plaintiff’s limitations 4 with concentration and pace into “the only concrete restrictions available to 5 him – the restrictions articulated by the State agency psychological 6 consultants. Stubbs-Danielson, 539 F.3d at 1174; see also Knealy P. v. 7 Kijakazi, No. 20-cv-0984-AJB-BGS, 2022 U.S. Dist. LEXIS 33026, at *73 8 (S.D. Cal. Feb. 24, 2022) (“limiting Plaintiff to ‘understand[ing], 9 remember[ing], and carry[ing] out simple instructions and tasks’ adequately 10 captured Plaintiff’s moderate limitations in concentration, persistence, and 11 pace.”). 12 Nor does Plaintiff dispute the Commissioner’s explanation that the 13 ALJ’s RFC for “unskilled tasks” is consistent with the State agency 14 psychologists’ opinions that Plaintiff is able to perform “simple tasks.” (ECF 15 No. 17 at 37 n.10). This can be a meaningful distinction. See Kramer, 2022 16 U.S. Dist. LEXIS 53738, at *41 n.16 (“‘unskilled work’ and ‘simple, repetitive 17 tasks’ are terms of art and apply to different limitations . . . . not all unskilled 18 jobs will necessarily be limited to the simplest level of work.”). Unskilled 19 work is “work which needs little or no judgment to do simple duties that can 20 be learned on the job in a short period of time.” Id. at *37 n.14 (citing 20 21 C.F.R. §§ 404.1568(a); 416.968(a)). Here, because Dr. Clark opined that 22 Plaintiff has no limitations in her ability to understand instructions, 23 complete simple tasks, and complete complex tasks, the Court finds that 24 substantial evidence supports the ALJ’s restriction to unskilled work to the 25 extent that it may be broader than “simple tasks.” (See AR at 351). 26 Accordingly, the Court RECOMMENDS the District Judge find that 1 concentration, persistence, or pace. 2 b. Ability to Sustain an Ordinary Routine Without 3 Sustained Supervision and Plaintiff’s “Difficulty 4 Attending Work” 5 Plaintiff’s argument regarding the attendance limitations opined by Dr. 6 Clark is better supported but does not persuade the Court that the ALJ 7 reversibly erred here. As Plaintiff points out, courts have held that 8 “[a]lthough the ALJ’s RFC restriction for non-complex tasks may encompass 9 the concentration, persistence, and pace limitations” it “does not sufficiently 10 account for Plaintiff’s moderate limitations in performing activities within a 11 schedule, maintaining regular attendance in the workplace, or completing a 12 normal workday and workweek without interruption.” Atkinson v. Colvin, 13 No. EDCV 14-02337 (GJS), 2015 U.S. Dist. LEXIS 136660 (C.D. Cal. Oct. 5, 14 2015) (“ALJ erred by failing to explain why he did not include in the RFC 15 assessment [the consultative examining psychiatrist’s] findings that Plaintiff 16 has moderate limitations in the ability to perform activities within a 17 schedule, maintain regular attendance, and complete a normal workday and 18 workweek without interruption from psychologically-based symptoms” 19 despite purportedly giving great weight to the opinion.). 20 Courts appear to routinely remand based on an ALJ’s failure to address 21 moderate, or even mild mental limitations. See, e.g., Patricia C. v. Saul, No. 22 19-cv-00636-JM-JLB, 2020 U.S. Dist. LEXIS 144478, at *37-41 (S.D. Cal. 23 Aug. 10, 2020) (collecting cases and holding, “[t]he Court will not infer in a 24 vacuum that the ALJ considered Plaintiff’s mild mental limitations but then 25 validly concluded that they did not cause any significant limitation 26 necessitating inclusion in the RFC.”). This Court finds Patricia C. 1 incorporated the Step Two severity assessment with boilerplate language and 2 failed to make the requisite “more detailed assessment” regarding Plaintiff’s 3 RFC. Id. at *40. Here, following the ALJ’s RFC determination, he further 4 discussed the opinions of Dr. Clark and the State agency psychological 5 consultants regarding Plaintiff’s mild to moderate mental limitations. (See 6 AR at 35-36). 7 Plaintiff has not provided any binding authority to suggest that remand 8 is required, and the Court is not persuaded that remand is warranted on the 9 record here. Dr. Clark minimally expanded on her assessment that Plaintiff 10 has moderate limitations in her ability to sustain an ordinary routine without 11 sustained supervision by stating, “she would have difficulty attending work 12 every day.” (AR at 351). Dr. Clark did not indicate a reason for Plaintiff’s 13 “difficulty attending work every day” and the basis for Dr. Clark’s conclusion 14 is not apparent. The only portion of Dr. Clark’s evaluation that seems to 15 address attendance is Dr. Clark’s notation that Plaintiff reports “her mother 16 has to keep up with her appointments.” (AR at 349). Dr. Clark does not 17 indicate how frequently Plaintiff might miss work. (AR at 349-51). 18 Some ALJs have articulated reasons to reject similarly vague opinions 19 in the context of attendance limitations. See, e.g., Barrera v. Comm’r of Soc. 20 Sec., No. 1:16-cv-01466-SAB, 2018 U.S. Dist. LEXIS 9128, at *42 (E.D. Cal. 21 Jan. 19, 2018) (affirming where the basis for finding that plaintiff would have 22 difficulty managing a full workday with the standard schedule of breaks was 23 unclear, and the source does not explain how much of a problem Plaintiff 24 would have managing a full workday.) However, failure to explicitly reject 25 these types of opined limitations does not necessarily constitute error, as 26 explained below. 1 The Commissioner argues that “‘moderate’ limitation, in the context of 2 a mental RFC, means that the claimant’s ability to function on a sustained 3 basis in a particular area remains ‘fair’ or ‘satisfactory.’” (ECF No. 17 at 35) 4 (citing SSA Revised Medical Criteria for Evaluating Mental Disorders, 81 5 Fed. Reg. 66137, 66164 (Sep. 26, 2016); Fergerson v. Berryhill, No. 5:17-cv- 6 00161-KES, 2017 U.S. Dist. LEXIS 182053, at *3 (C.D. Cal. Nov. 1, 2017)). 7 Plaintiff is quick to dismiss the Commissioner’s response as a post hoc 8 rationalization. (ECF No. 17 at 38-39). Ultimately, the question here is 9 whether the ALJ was required to offer reasoning to reject this opined 10 limitation. As the Commissioner’s argument is pertinent to the threshold 11 question of whether the ALJ rejected Dr. Clark’s opinion (and not whether he 12 had adequate reasons for doing so), the Court will not dismiss the 13 Commissioner’s argument as a post hoc rationalization. 14 Working on a “regular and continuing basis,” which is the default 15 position of any RFC, is not inconsistent with a “moderate” level of 16 absenteeism, which is “more than slight, but the individual can still function 17 satisfactorily.” Fergerson, 2017 U.S. Dist. LEXIS 182053, at *9-11. But see, 18 e.g., Shelyne H. v. Kijakazi, No. CV 20-7334 MRW, 2022 U.S. Dist. LEXIS 19 5681, at *5 (C.D. Cal. Jan. 11, 2022) (finding the Commissioner’s argument 20 plausible that the ALJ reasonably interpreted the moderate mental 21 limitations as not needing a specific limitation in the RFC, but remanding 22 due to the lack of “a reviewable statement that provides visibility into the 23 decision-making process”); David L. v. Kijakazi, No. EDCV 20-1869-KK, 2021 24 U.S. Dist. LEXIS 184751, at *16 (C.D. Cal. Sep. 27, 2021) (“[T]he ALJ was 25 required to either include the limitations regarding attendance and the 26 completion of a normal workday and workweek in Plaintiff’s RFC assessment 1 Regarding moderate limitations in attendance and sustaining a routine 2 without sustained supervision, courts in this district have found the ALJ did 3 not err when they neither stated the limitations in the RFC nor specified 4 their reasons for omitting them. “[A] fair reading” of a consultative 5 psychological examiner’s opinion that a plaintiff was moderately limited in 6 his ability to maintain regular attendance is that “although Plaintiff has 7 more than a slight limitation in workplace attendance, he can still function 8 satisfactorily in that area.” McIntosh v. Colvin, No. 16-cv-0963-JAH-BGS, 9 2018 U.S. Dist. LEXIS 30778, at *5, 21, 24 (S.D. Cal. Feb. 26, 2018) (ALJ 10 afforded great weight to the consultative psychological examiner’s opinion 11 which included moderate limitations in the ability to maintain regular 12 attendance and the court held the omission of this limitation “did not 13 constitute a rejection.”); see also Rector v. Colvin, No. 13-cv-00168-BEN 14 (BGS), 2014 U.S. Dist. LEXIS 26146, at *17-19 (S.D. Cal. Feb. 26, 2014) (“The 15 ALJ did not reject the ‘moderate’ limitations stated by [the examining 16 psychologist]. Rather, he found Plaintiff able to perform some simple tasks 17 despite these limitations.”). 18 In particular, some courts decline to find error when ALJs omit 19 discussion of similarly vague attendance limitations. For example, courts 20 have declined to find error where the medical source does not provide specific 21 restrictions regarding the number of days or percentage of time the claimant 22 would be absent or off pace. See Cecilia M. v. Kijakazi, No. 5:20-cv-00092-PD, 23 2021 U.S. Dist. LEXIS 168123, at *10 (C.D. Cal. Sep. 3, 2021) (holding that 24 “the ALJ was not obligated to include further limitations addressing 25 Plaintiff’s moderate limitations in completing a normal workday/workweek 26 and performing job functions without special supervision where [the relied- 1 Fergerson, 2017 U.S. Dist. LEXIS 182053, at *11 (“an ALJ is not required to 2 make up restrictions that are not actually articulated by any medical source 3 or to give ‘legitimate and specific reasons’ for rejecting [attendance] 4 restrictions never articulated.”). 5 Beyond Dr. Clark’s opinion, Plaintiff does not point to any evidence in 6 the record supporting her limitations in sustaining an ordinary routine 7 without sustained supervision, or with maintaining appropriate attendance. 8 Plaintiff does not address the opinions of the State agency consultants which 9 specifically opine that Plaintiff is “not significantly limited” in her “ability to 10 perform activities within a schedule, maintain regular attendance, and be 11 punctual within customary tolerances” or her ability to “sustain an ordinary 12 routine without special supervision.” (AR at 96, 114). The State agency 13 consultants’ opinions support the ALJ’s reasonable understanding that Dr. 14 Clark used the regular SSA definition of “moderate” limitation in her 15 opinions. See Marissa M. S. v. Saul, No. 5:20-cv-01221-AFM, 2021 U.S. Dist. 16 LEXIS 113064, at *13 (C.D. Cal. June 16, 2021) (“There is no evidence in the 17 record to suggest that Dr. Cross or any other treating, consulting, or 18 reviewing source considered Plaintiff to be wholly unable to complete a 19 workday or work week, particularly if she was limited to performing simple 20 and routine tasks at a non-production rate pace.”). 21 Courts “must uphold the ALJ’s decision where the evidence is 22 susceptible to more than one rational interpretation.” Andrews v. Shalala, 53 23 F.3d 1035, 1039-40 (9th Cir. 1995) (citation omitted). While another rational 24 interpretation of Dr. Clark’s opinion is possible, because the ALJ appears to 25 have reasonably interpreted that the moderate limitations opined by Dr. 26 Clark do not prevent Plaintiff from working on a regular and continuing basis 1 || See Fergerson, 2017 U.S. Dist. LEXIS 182058, at *11. Accordingly, the Court 2 ||RECOMMENDS that the District Court find that the ALJ did not reject Dr. 3 || Clark’s opinion regarding Plaintiff's moderate limitations in attending work 4 ||or sustaining an ordinary routine without sustained supervision. 5 III. CONCLUSION 6 Based on the foregoing, the Court RECOMMENDS that the District 7 || Court resolve the Joint Motion in favor of the Commissioner. This Report g ||and Recommendation of the undersigned Magistrate Judge is submitted to 9 ||the United States District Judge assigned to this case, pursuant to the 10 || provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United 11 ||States District Court for the Southern District of California. 12 IT IS HEREBY ORDERED that any written objection to this report 13 must be filed with the Court and served on all parties no later than August 14 2022. The document should be captioned “Objections to Report and 15 || Recommendation.” 16 IT IS FURTHER ORDERED that any reply to the objections shall be 17 filed with the Court and served on all parties no later than September 2, 18 ||2022. The parties are advised that failure to file objections within the 19 specified time may waive the right to raise those objections on appeal of the 90 || Court’s order. Martinez v. Yist, 951 F.2d 1158 (9th Cir. 1991). 21 IT IS SO ORDERED. Dated: August 12, 2022 My, + uk s | [ Hon. Mitchell D. Dembin 24 United States Magistrate Judge 25 26 27