UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 MONICA ABITIA, No. 1:21-cv-00334-ADA-GSA 5 Plaintiff, 6 v. FINDINGS AND RECOMMENDATIONS 7 TO DIRECT ENTRY OF JUDGMENT IN KILOLO KIJAKAZI, acting FAVOR OF DEFENDANT 8 Commissioner of Social Security, COMMISSIONER OF SOCIAL SECURITY AND AGAINST PLAINTIFF 9 Defendant. (Doc. 20) 10 OBJECTIONS, IF ANY, DUE WITHIN 11 FOURTEEN (14) DAYS 12 I. Introduction 13 Plaintiff Monica Abitia (“Plaintiff”) seeks judicial review of a final decision of the 14 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 15 supplemental security income pursuant to Title XVI of the Social Security Act. The matter is before 16 the undersigned for issuance of Findings and Recommendations based on the parties’ briefs.1 Docs. 17 20–22. After reviewing the record the undersigned finds that substantial evidence and applicable 18 law support the ALJ’s decision and recommends that the Court direct entry of judgment in favor of 19 Defendant against Plaintiff, affirming the final decision of the Commissioner of Social Security. 20 II. Factual and Procedural Background2 21 On September 17, 2015 Plaintiff applied for supplemental security income. The 22 Commissioner denied the application initially on February 2, 2016 and on reconsideration on June 23 2, 2016. AR 124, 133. A hearing was held before an Administrative Law Judge (the “ALJ”) on 24 September 7, 2018. AR 46. On December 11, 2018 the ALJ issued an unfavorable decision. AR 25
26 1 The parties did not consent to jurisdiction the Magistrate Judge. See Docs 8, 11. Accordingly, the matter was then assigned to District Judge Dale Drozd and reassigned again to District Judge Ana de Alba upon her appointment. Doc. 27 9, 23. 2 The undersigned has reviewed the relevant portions of the administrative record including the medical, opinion and 28 testimonial evidence about which the parties are well informed, which will not be exhaustively summarized. Relevant portions will be referenced in the course of the analysis below when relevant to the parties’ arguments. 17–45. The Appeals Council denied review on January 31, 2020. AR 6–11. 2 III. The Disability Standard
3 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the
4 Commissioner denying a claimant disability benefits. “This court may set aside the
5 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal
6 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180
7 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the
8 record that could lead a reasonable mind to accept a conclusion regarding disability status. See
9 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 10 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 11 When performing this analysis, the court must “consider the entire record as a whole and 12 may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social 13 Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the 14 evidence could reasonably support two conclusions, the court “may not substitute its judgment for 15 that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 16 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless 17 error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the 18 ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 19 To qualify for benefits under the Social Security Act, a plaintiff must establish that 20 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 21 last for a continuous period of not less than twelve months. 42 U.S.C. § 22 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not 23 only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists 24 in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether 25 he would be hired if he applied for work. 26 42 U.S.C. §1382c(a)(3)(B). 27 To achieve uniformity in the decision-making process, the Commissioner has established a 28 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the 2 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.
3 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial
4 gainful activity during the period of alleged disability, (2) whether the claimant had medically
5 determinable “severe impairments,” (3) whether these impairments meet or are medically
6 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4)
7 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant
8 work, and (5) whether the claimant had the ability to perform other jobs existing in significant
9 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears 10 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to 11 prove that Plaintiff can perform other work in the national economy given her RFC, age, education 12 and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 13 IV. The ALJ’s Decision 14 At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since 15 her application date of September 17, 2015. AR 22. At step two the ALJ found that Plaintiff had 16 the following severe impairments: learning disorder not otherwise specified; depression; anxiety; 17 intellectual disability; history of renal stones; bilateral carpal tunnel syndrome; phase of life 18 adjustment as a young adult; academic delay; developmental language disorder; post-traumatic 19 stress disorder (PTSD); temporomandibular joint dysfunction (TMJD); arrythmia; gastritis; and, 20 bilateral hand eczema. AR 22. At step three the ALJ found that Plaintiff did not have an 21 impairment or combination thereof that met or medically equaled the severity of one of the 22 impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 23. 23 Prior to step four the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 24 concluded that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. 416.967(b) with 25 the following additional restrictions: 26 . . . frequently climb ramps or stairs, but cannot climb ladders, ropes, or scaffolds. 27 She could frequently balance, stoop, kneel, crouch, or crawl. She could frequently handle, finger, and feel with the bilateral upper extremities. She must avoid 28 concentrated exposure to temperature extremes, wetness/humidity, vibration, and hazards. She can have no more than occasional face-to-face interaction with the 2 general public, supervisors, and coworkers. The claimant cannot understand, remember, and/or apply information necessary to perform complex and detailed 3 work tasks or make judgments on complex and detailed work-related job assignments or cope with the stress normally associated with semi-skilled or skilled 4 employment. 5 AR 25–38.
6 At step four the ALJ concluded that Plaintiff had no past relevant work. AR 38. At step 7 five, in reliance on the VE’s testimony, the ALJ concluded that Plaintiff could perform other jobs 8 9 existing in significant numbers in the national economy: ga rment bagger; bottle line attendant; 10 garment sorter. AR 39. Accordingly, the ALJ concluded that Plaintiff was not disabled at any time 11 since her application date of September 17, 2015. AR 39. 12 V. Issues Presented 13 Plaintiff asserts two claims of error: 1) that the ALJ erred by rejecting Dr. Rios’ opinion 14 without setting forth specific legitimate reasons; 2) that the ALJ “failed to include work-related 15 limitations in the RFC consistent with the nature and intensity of Plaintiff’s limitations, and failed 16 to offer any reason for discounting Plaintiff’s limitations related to colitis, including her persistent 17 abdominal pain.” Br. at 1, Doc. 20. 18 A. Dr. Rios’ Opinion 19 20 1. Applicable Law 21 Before proceeding to step four, the ALJ must first determine the claimant’s residual 22 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2 23 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations” 24 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 25 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 26 27 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 28 In doing so, the ALJ must determine credibility, resolve conflicts in medical testimony and resolve evidentiary ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). “In 2 determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record such as 3 medical records, lay evidence and the effects of symptoms, including pain, that are reasonably 4 5 attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 20 C.F.R.
6 § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical and other
7 evidence). “The ALJ can meet this burden by setting out a detailed and thorough summary of the
8 facts and conflicting evidence, stating his interpretation thereof, and making findings.” Magallanes
9 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th 10 Cir. 1986)). 11 For applications filed before March 27, 2017, the regulations provide that more weight is 12 13 generally given to the opinion of treating physicians, which are given controlling weight when well 14 supported by clinical evidence and not inconsistent with other substantial evidence. 20 C.F.R. § 15 404.1527(c)(2); see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 16 1996) (noting that the opinions of treating physicians, examining physicians, and non-examining 17 physicians are entitled to varying weight in residual functional capacity determinations). 18 An ALJ may reject an uncontradicted opinion of a treating or examining physician only for 19 “clear and convincing” reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a 20 21 treating or examining physician may be rejected for “specific and legitimate” reasons. Id. at 830. 22 In either case, the opinions of a treating or examining physician are “not necessarily conclusive as 23 to either the physical condition or the ultimate issue of disability.” Morgan v. Comm’r of Soc. Sec. 24 Admin., 169 F.3d 595, 600 (9th Cir. 1999). Regardless of source, all medical opinions that are not 25 given controlling weight are evaluated using the following factors: examining relationship, 26 treatment relationship, supportability, consistency, and specialization. 20 C.F.R. § 404.1527(c). 27 28 The opinion of a non-examining physician (such as a state agency physician) may constitute substantial evidence when it is “consistent with independent clinical findings or other evidence in 2 the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 3 2. Analysis 4 5 On January 12, 2016, Dr. Rios performed a consultative internal medicine evaluation. The
6 relevant portions of the examination and opinion are as follows:
7 General Findings: There was slight wasting of the left thenar pads. Grip strength remained adequate at 5/5 and fine and gross finger movements remains preserved. 8 The claimant is right hand dominant. Negative Tinel’s sign and Phalen’s sign on 9 the right. . . . 10 Functional Assessment/Medical Source Statement: This claimant has clinical findings indicative of carpal tunnel of the left with some slight wasting of the thenar 11 pads and positive Tinel’s sign. With these findings, therefore the following is recommended: 12 . . . 13 Manipulative Activities: no limitations on reaching over head and reaching forward, but she can only perform occasional handling, fingering, and feeling on account of 14 her carpal tunnel syndrome.
15 AR 571–72 (emphasis added). 16 The ALJ rejected the manipulative limitations explaining as follows: 17 I accord little weight to the manipulative limitations expressed in Dr. Rios' medical 18 source statement because Dr. Siekerkotte found no manipulative limitations and this is consistent with the hospital records documenting a good functional ability 19 throughout the extremities based on electrodiagnostic testing on July 11, 2018 (see, Exhibit 18F). Furthermore, Dr. Rios found intact sensation, full grip strength with 20 fine and gross finger movements preserved, and negative Tinel's and Phalen's sign 21 despite slight wasting of the left thenar pads. These findings are not consistent with the manipulative limitations assessed. The established residual functional capacity 22 accommodates the occasional symptoms the claimant has reported with respect to her hand and arm complaints. 23
AR 36 (emphasis added). 24 25 Plaintiff argues as follows: 26 The ALJ asserted that Dr. Rios’s opinion is not consistent with findings of negative Tinel’s and Phalen’s sign. Ar. 36. However, the ALJ failed to note that Dr. Rios 27 only documented negative signs on the right (AR 571), and there was positive 28 Tinel’s and wasting of the thenar pads on the left. AR 572. Br. at 7 (Doc. 20). 2 In response, Defendant states as follows: 3 More specifically, Plaintiff argues that the ALJ failed to note that, during Dr. Rios’s 4 examination of Plaintiff, Tinel’s and Phalen’s signs were purportedly positive on 5 the left (Id. at 7, citing AR 571-72). Plaintiff also argues that the presence of slight thenar pad wasting on the left further supports Dr. Rios’s opinion (Id.). However,
6 the actual examination report of Dr. Rios does not document positive Tinel’s or Phalen’s sign in either upper extremity (AR 570-72). It is not until Dr. Rios’s 7 “Functional Assessment/Medical Source Statement” that a positive finding is reported: Dr. Rios stated that Tinel’s sign was positive on the left (AR 571). Thus, 8 the medical sign, though incorporated into his opinion, was not documented in his 9 examination report and even that subsequent opinion d id not reference the positive Phalen’s sign upon which Plaintiff now partially bases her argument. 10 Resp. at 6 (Doc. 21). 11 The first sentence inaccurately characterizes Plaintiff’s argument, which did not contend 12 13 the Phalen’s sign was positive on the left, only that Tinel’s was positive on the left, which it was. 14 The remaining discussion concerning the location of the pertinent findings within Dr. Rios 15 examination and opinion is not persuasive. 16 Dr. Rios documented the negative right handed provocation signs (Phalen’s and Tinel’s) 17 under “General Findings,” but documented the positive left hand provocation sign (Tinel’s) under 18 “Functional Assessment/Medical Source Statement.” Dr. Rios documented the slight thenar pad 19 wasting of the left hand in both sections. Here, the ALJ’s discussion of Dr. Rios examination and 20 21 opinion was not entirely accurate. The ALJ suggested Tinel’s was negative bilaterally, but it was 22 positive on the left as Plaintiff emphasizes. Further, as Plaintiff observes, the ALJ’s citation to Dr. 23 Siekerkotte’s opinion (which identified no manipulative limitations) does not bolster the ALJ’s 24 decision. As the ALJ himself noted elsewhere in the decision, Dr. Siekerkotte’s opinion predated 25 the relevant period. 26 Nevertheless, the ALJ identified additional reasons for discounting Dr. Rios opinion which 27 28 were both specific and legitimate. First, the ALJ noted Dr. Rios’ other examination findings included full grip strength with fine and gross motor movements preserved. Plaintiff contends in 2 reply that the ALJ failed to explain how this undermines Dr. Rios’ opinion concerning a limitation 3 to occasional handling and fingering. Reply at 2, Doc. 22. At issue is the frequency with which 4 5 Plaintiff could perform fine and gross manipulations with her hands in the work context. She
6 demonstrated adequate functioning in those respects at the consultative examination.
7 The ALJ further cited the negative EMG study (Ex. 18F, AR 669). Plaintiff notes that a
8 negative EMG does not rule out carpal tunnel, particularly given other signs of carpal tunnel such
9 as positive Tinel’s and thenar atrophy. But this argument somewhat misstates the issue as there is 10 no dispute that Plaintiff had carpal tunnel syndrome, and the ALJ did not suggest otherwise. The 11 ALJ found Plaintiff had the severe impairment of carpal tunnel syndrome and that she was therefore 12 13 limited to frequent handling and fingering (up to 2/3 of an 8-hour day, SSR 83-10). The ALJ did 14 not fully embrace Dr. Rios opinion that Plaintiff was limited to occasional handling and fingering 15 (1/3 of an 8-hour day), a conclusion which is well-supported. 16 This is not a case where an ALJ is required to defer to the physician’s opinion on a complex 17 or highly technical issue. The findings at issue are concise, uncomplicated, and amply supportive 18 of the ALJ’s conclusion. Plaintiff had a positive provocation sign (Tinel’s) and “slight” thenar 19 atrophy in her non-dominant left hand, no positive clinical findings shown in her right hand, full 20 21 grip strength and dexterity in both hands, and an unremarkable EMG/NCV. The ALJ reasonably 22 limited Plaintiff to frequent, not occasional, manipulative activities. 23 B. Plaintiff’s Testimony 24 1. Applicable Law 25 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record 26 such as medical records, lay evidence and the effects of symptoms, including pain, that are 27 28 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 20 C.F.R. § 404.1545(a)(3). 2 The ALJ is responsible for determining credibility,3 resolving conflicts in medical 3 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). A 4 5 claimant’s statements of pain or other symptoms are not conclusive evidence of a physical or mental
6 impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p.
7 An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding
8 subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.
9 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective 10 medical evidence of an impairment that could reasonably be expected to produce some degree of 11 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the 12 13 claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate the 14 intensity and persistence of [the claimant’s] symptoms to determine the extent to which the 15 symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2. 16 An ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and 17 convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16-3p 18 at *10. Subjective testimony “cannot be rejected on the sole ground that it is not fully corroborated 19 by objective medical evidence,” but the medical evidence “is still a relevant factor in determining 20 21 the severity of claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 22 (9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 404.1529(c)(2)). 23 The ALJ must examine the record as a whole, including objective medical evidence; the 24 claimant’s representations of the intensity, persistence and limiting effects of his symptoms; 25 26
27 3 Social Security Ruling 16-3p applies to disability applications heard by the agency on or after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that subjective symptom evaluation is not “an 28 examination of an individual’s character” but an endeavor to “determine how symptoms limit ability to perform work- related activities.” S.S.R. 16-3p at 1-2. statements and other information from medical providers and other third parties; and any other 2 relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5. 3 2. Analysis 4 5 The ALJ’s analysis proceeded by: 1) summarizing the claimant’s testimony and subjective
6 reports; 2) finding the claimant’s medically determinable impairments could reasonably be
7 expected to cause the alleged symptoms (and finding no malingering); and, 3) finding that
8 “claimant's statements concerning the intensity, persistence and limiting effects of these symptoms
9 are not entirely consistent with the medical evidence and other evidence in the record for the reasons 10 explained in this decision.” AR 26. 11 Plaintiff argues that what follows was a non-specific summary of the objective evidence 12 13 and other evidence of record, and a conclusory rejection of all of Plaintiff’s subjective complaints. 14 However, Plaintiff likewise does not reference specific applicable evidence supportive of Plaintiff’s 15 complaints. Br. at 10 (citing Godinez v. Berryhill, No. SACV 17-0194 SS, 2017 WL 6349720, at 16 *4 (C.D. Cal. Dec. 11, 2017). 17 Some Ninth Circuit case law does suggest the ALJ must do more and engage in a sort of 18 matching exercise explaining which pieces of evidence undermined which pieces of testimony. 19 See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)) (“[T]he ALJ must 20 21 specifically identify the testimony she or he finds not to be credible and must explain what evidence 22 undermines the testimony.”); Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (noting ALJ 23 must explain “which daily activities conflicted with which part of Claimant's testimony.”). 24 Other Ninth Circuit case law suggests otherwise. See, e.g., Lambert v. Saul, 980 F.3d 1266, 25 1277 (9th Cir. 2020) (“Our cases do not require ALJs to perform a line-by-line exegesis of the 26 claimant's testimony, nor do they require ALJs to draft dissertations when denying benefits.”); 27 28 Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (finding the ALJ satisfied the “clear and convincing” standard for an adverse credibility determination where 2 claimant engaged in “gardening and community activities . . . evidence [which] did not suggest 3 Valentine could return to his old job,” but “did suggest that Valentine’s later claims about the 4 5 severity of his limitations were exaggerated.”).
6 On this issue, Plaintiff’s discussion is more academic than practical and is susceptible of
7 the same criticism directed at the ALJ, namely that Plaintiff offers no guidance as to what testimony
8 should have been credited as true, what evidence would support it, and what RFC restrictions would
9 logically follow in addition to, or in lieu of, the restrictions the ALJ already included in the RFC. 10 As the party challenging the agency’s determination, Plaintiff had the primary obligation of 11 providing a fact-specific discussion. See Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) 12 13 (“The claimant carries the initial burden of proving a disability.”); See Greenwood v. Fed. Aviation 14 Admin., 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, 15 and a bare assertion does not preserve a claim, particularly when, as here, a host of other issues are 16 presented for review”) (citation omitted); See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) 17 (“The burden of showing that an error is harmful normally falls upon the party attacking the 18 agency’s determination.”). 19 At the outset of her brief Plaintiff framed her second claim of error around “limitations 20 21 related to colitis, including her persistent abdominal pain” (Br. at 1), but neither her “Summary of 22 Relevant Testimony,” nor her argument section revisited the topics of colitis or abdominal pain. 23 Plaintiff offered the following summary of relevant testimony, testimony she presumably 24 contends ought to have been credited as true and incorporated into the RFC: 25 At the hearing, Plaintiff testified to the following: She is diagnosed with 26 depression, a learning disability, a history of renal stones, academic delay, post- traumatic stress disorder, and TMJ with jaw pain and locking that is worse at night. 27 Ar. 51-52. She did not complete the 10th grade, and she did not get her GED or 28 vocational training. Ar. 52. She was turned 18 years old while in the tenth grade and she decided to leave school. Ar. 54. She had an IEP for help with all classes, including reading, math, and science. Ar. 54-55. She can read easy books at about a 2 fifth-grade level. Ar. 52-53. She does not have a driver’s license but she has a bus pass. Ar. 67. She has trouble with bus routes at times and has to ask the bus drivers 3 for help. Ar. 70. Some drivers are rude and will not help, so she asks other people on the bus to figure out how to get where she needs to go. Ar. 70. She sometimes 4 cannot understand enough to read labels and she has to ask one of her sisters. Ar. 5 69. She had a son in 2011, but she had hard times with miscarriages after that,
6 which led to post-traumatic stress disorder. Ar. 56. She previously saw a counselor and takes Prozac, and she is looking for a new counselor. Ar. 56. She and her son 7 live with her mom and stepfather, and her parents make meals and pay bills. Ar. 57- 58. She does some cleaning and goes to the store with her mother. Ar. 58. If the 8 store is crowded, she will stay in the car because she is too anxious and cannot 9 handle the crowd. Ar. 58-61. If she has a bad day wher e her anxiety and depression feel severe, her mom will take over childcare for her. Ar. 62. 10 She has carpal tunnel with symptoms of numbness and tingling in the hands. Ar. 64. She will drop things once or twice daily and her hands cramp with she writes. 11 Ar. 65. She wears wrist braces at night. Ar. 65. She does not have a consistent doctor to give her continuous care, but she sees any doctor who will treat her. Ar. 73-74. 12 She does not know if she needs surgery, but she would be afraid if she did. Ar. 74. 13 Despite the ALJ’s inclusion of language rejecting Plaintiff’s testimony as to the intensity, 14 persistence, and limiting effects of her symptoms, none of the above testimony, if accepted, is 15 inconsistent with the RFC which appears to reasonably accommodate Plaintiff’s alleged 16 17 limitations. 18 Plaintiff highlights her testimony as to her diagnosed learning disability, academic delay, 19 and highest education level. These are objective facts beyond dispute regardless of the issue of 20 Plaintiff’s credibility. 21 The ALJ acknowledged the diagnoses and education level and posed the same to the 22 Vocational Expert at the hearing among Plaintiff’s other vocational considerations and work 23 history. AR 25; 76-77. Plaintiff does not contend otherwise. 24 25 Plaintiff also highlights her testimony as to her 5th grade reading level, difficulty using 26 public transportation without guidance from bus drivers or passengers, and difficulty understanding 27 some food labels without guidance from her sisters. Relatedly, the RFC provides that she cannot 28 “understand, remember, and/or apply information necessary to perform complex and detailed work tasks or make judgments on complex and detailed work-related job assignments.” AR 25. Plaintiff 2 does not contend that a more restrictive RFC was warranted in consideration of her intellectual 3 limitations. 4 5 In addition, Plaintiff points to her testimony concerning her post-traumatic stress disorder,
6 anxiety and fear of crowded places. In the same vein, the RFC provides that “she cannot cope with
7 the stress normally associated with semi-skilled or skilled employment,” and can have no more
8 than occasional face-to-face interaction with the general public, supervisors, and peers. Id.
9 Again, Plaintiff offers little as to what a more appropriate RFC would look like. Even if the 10 Court was inclined to remand for further proceedings, it is not clear what guidance the Court would 11 provide the ALJ on remand other than to generally reconsider Plaintiff’s testimony. To the extent 12 13 Plaintiff believes she testified to the existence of specific limitations not adequately accounted for 14 in the RFC, it was her obligation to explain this. She did not. See Juniel v. Saul, No. 1:20-CV- 15 0421 JLT, 2021 WL 2349878, at *7 (E.D. Cal. June 9, 2021) (“Plaintiff fails to show this limitation 16 to which he testified—and the ALJ acknowledged remained in the treatment records—was not 17 properly accounted for in his residual functional capacity, which indicated Plaintiff “could not have 18 public contact” and limited interaction with co-workers.”). 19 Finally, Plaintiff highlights her testimony as to numbness and tingling in her hands, 20 21 dropping things once or twice daily, and use of night splints. The ALJ did not refute the existence 22 of carpal tunnel syndrome and associated limitations and restricted Plaintiff to no more than 23 frequent (2/3 of an 8-hour day) manipulative activities. Importantly, the RFC is not a representation 24 of the most one can do while remaining pain free, it is a representation of “the most you can do 25 despite your limitations.” 20 C.F.R. 416.945(a)(1). The testimony, even if credited as true, does 26 not establish or strongly support more restrictive manipulative limitations. Therefore, Plaintiff 27 28 establishes no error as to the ALJ’s treatment of her subjective complaints as reflected in her oral testimony or function reports. 2 VI. Conclusion 3 For the reasons stated above, the undersigned recommends that the Court find that 4 5 substantial evidence and applicable law support the ALJ’s conclusion that Plaintiff was not
6 disabled. The undersigned further recommends that Plaintiff’s appeal from the administrative
7 decision of the Commissioner of Social Security be denied, and that the Clerk of Court be directed
8 to enter judgment in favor of Defendant Kilolo Kijakazi, acting Commissioner of Social Security,
9 and against Plaintiff Monica Abitia. 10 VII. Objections Due within 14 Days 11 These Findings and Recommendations will be submitted to the United States District Judge 12 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 14 days after being served with these Findings and Recommendations, any party may file written 15 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 16 Findings and Recommendations.” The parties are advised that failure to file objections within the 17 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 18 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19
20 21 IT IS SO ORDERED.
22 Dated: July 30, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 23
24 25 26 27 28