(SS) Alarcon v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: August 15, 2024
• Docket: 1:23-cv-00851
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE RAUL ALARCON, Case No. 1:23-cv-00851-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, GRANTING 13 v. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND AFFIRMING THE 14 MARTIN O’MALLEY, DECISION OF THE COMMISSIONER OF COMMISSIONER OF SOCIAL SOCIAL SECURITY2 15 SECURITY,1 (Doc. Nos. 16, 20) 16 Defendant. 17 18 19 Jose Raul Alarcon (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 supplemental security income under the Social Security Act. (Doc. No. 1). The matter is 22 currently before the undersigned on the parties’ briefs, which were submitted without oral 23 argument. (Doc. Nos. 16, 20). For the reasons stated, the Court denies Plaintiff’s motion for 24 summary judgment, grants Defendant’s motion for summary judgment, and affirms the 25

26 1 This action was originally filed against Kilolo Kijakazi in his capacity as the Commissioner of Social Security. (See Doc. No. 1). The Court has substituted Martin O’Malley, who has since been appointed the 27 Acting Commissioner of Social Security, as the defendant in this suit. See Fed. R. Civ. P. 25(d). 2 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. 28 §636(c)(1). (Doc. No. 10). 1 Commissioner’s decision. 2 I. JURISDICTION 3 Plaintiff protectively filed for supplemental security income on March 25, 2021, alleging a 4 disability onset date of June 1, 1985. (AR 156-62). Benefits were denied initially (AR 68-80, 5 100-04) and upon reconsideration (AR 81-95, 108-12). Plaintiff appeared for a telephonic 6 hearing before an administrative law judge (“ALJ”) on March 31, 2022. (AR 35-67). Plaintiff 7 testified at the hearing and was represented by counsel. (Id.). The ALJ denied benefits (AR 17- 8 34) and the Appeals Council denied review (AR 5-11). The matter is before the Court under 42 9 U.S.C. § 1383(c)(3). 10 II. BACKGROUND 11 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 12 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 13 summarized here. 14 Plaintiff was 62 years old at the time of the hearing. (See AR 187). He has his GED. 15 (AR 192). He rents a room, and the owner “helps” him to get out of bed and “checks on [him] 16 periodically.” (AR 46-47). He did kitchen work while he was incarcerated for 10-12 years. (AR 17 53). Plaintiff testified he has constant pain in the middle of his back and “all down” his right leg. 18 (AR 44). He can stand for 15 minutes at a time, and then he must sit for 20-25 minutes before he 19 can stand up again. (AR 44). Plaintiff reported that he uses a cane “in the house mostly,” but it is 20 not prescribed by a doctor. (AR 44-45). Plaintiff testified that in a typical month he has 19-20 21 “bad days,” and he spends 16 hours a day lying down. (AR 45, 47). He can walk for about 15 22 minutes before he needs to sit down for “a while,” he can pick up a maximum of a gallon of milk 23 in each hand, he doesn’t want to “deal with” people, sometimes his “mind wanders,” and he has a 24 bad memory. (AR 48-50). Plaintiff testified that he gets headaches “four times a day every day” 25 including in the middle of the night. (AR 50-51). 26 III. STANDARD OF REVIEW 27 A district court’s review of a final decision of the Commissioner of Social Security is 28 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 1 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 2 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 3 evidence e” means “relevant evidence that a reasonable mind might accept as adequate to support 4 a conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial 5 evidence equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation 6 and citation omitted). In determining whether the standard has been satisfied, a reviewing court 7 must consider the entire record as a whole rather than searching for supporting evidence in 8 isolation. Id. 9 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 10 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 11 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 12 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 13 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 14 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 15 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 16 U.S. 396, 409-10 (2009). 17 IV. SEQUENTIAL EVALUATION PROCESS 18 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 19 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 20 activity by reason of any medically determinable physical or mental impairment which can be 21 expected to result in death or which has lasted or can be expected to last for a continuous period 22 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment 23 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 24 considering his age, education, and work experience, engage in any other kind of substantial 25 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 26 The Commissioner has established a five-step sequential analysis to determine whether a 27 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 28 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the 1 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 2 claimant is not disabled. 20 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 4 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 5 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 6 impairments which significantly limits [his or her] physical or mental ability to do basic work 7 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s 8 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 416.920(c). 10 At step three, the Commissioner compares the claimant’s impairment to severe 11 impairments recognized by the Commissioner to be so severe as to preclude a person from 12 engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as 13 severe or more severe than one of the enumerated impairments, the Commissioner must find the 14 claimant disabled and award benefits. 20 C.F.R. § 416.920(d). 15 If the severity of the claimant’s impairment does not meet or exceed the severity of the 16 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 17 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 18 ability to perform physical and mental work activities on a sustained basis despite his or her 19 limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 20 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 21 claimant is capable of performing work that he or she has performed in the past (past relevant 22 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant 23 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If 24 the claimant is incapable of performing such work, the analysis proceeds to step five. 25 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 26 claimant is capable of performing other work in the national economy. 20 C.F.R. § 27 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational 28 factors such as the claimant’s age, education, and past work experience. 20 C.F.R. § 1 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 2 find that the claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of 3 adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 4 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 5 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 6 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 7 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 8 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 9 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 10 V. ALJ’S FINDINGS 11 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 12 since March 25, 2021, the application date. (AR 22). At step two, the ALJ found that Plaintiff 13 has the following severe impairments: lumbar, thoracic and cervical segmental dysfunction, 14 obesity, chronic obstructive pulmonary disease, and asthma. (AR 22). At step three, the ALJ 15 found that Plaintiff does not have an impairment or combination of impairments that meets or 16 medically equals the severity of a listed impairment. (AR 25). The ALJ then found that Plaintiff 17 has the RFC to 18 lift, carry, push, and pull up to 50 pounds occasionally and 25 pounds frequently in medium work as defined by the regulations. He can 19 stand and/or walk 6 hours in an 8-hour day. He can sit 6-hours in an 8-hour day. He may occasionally climb ladders, ropes, and scaffolds, 20 climb ramps and stairs, stoop, kneel, crouch and crawl. He may frequently engage in work activity requiring flexion, extension, and 21 rotation of the neck. He must avoid more than occasional exposure to extreme cold, vibration, and concentrated pulmonary irritants such 22 as fumes, odors, dust, gases, chemicals, and poorly ventilated spaces. He should avoid all exposure to hazards such as dangerous moving 23 machinery and unsecured heights. 24 (AR 25). At step four, the ALJ found that Plaintiff has no past relevant work. (AR 28). At step 25 five, the ALJ found that considering Plaintiff’s age, education, work experience, and RFC, there 26 are jobs that exist in significant numbers in the national economy that Plaintiff can perform, 27 including hand packager, counter supply worker, dining room attendant, and marker. (AR 28- 28 29). On that basis, the ALJ concluded that Plaintiff has not been under a disability, as defined in 1 the Social Security Act, since March 25, 2021, the date the application was filed. (AR 29). 2 VI. ISSUES 3 Plaintiff seeks judicial review of the Commissioner’s final decision denying him 4 supplemental security income benefits under Title XVI of the Social Security Act. (Doc. No. 1). 5 Plaintiff raises the following issues for this Court’s review: 6 1. Whether the ALJ properly assessed the RFC; and 7 2. Whether the ALJ properly considered the medical opinion evidence. 8 (Doc. No. 16 at 15-25). 9 VII. DISCUSSION 10 A. RFC 11 The RFC assessment is an administrative finding based on all relevant evidence in the 12 record, not just medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In 13 determining the RFC, the ALJ must consider all limitations, severe and non-severe, that are 14 credible and supported by substantial evidence in the record. (Id.) (RFC determination will be 15 affirmed if supported by substantial evidence). However, an ALJ’s RFC findings need only be 16 consistent with relevant assessed limitations and not identical to them. Turner v. Comm'r of Soc. 17 Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010). Ultimately, a claimant’s RFC is a matter for the 18 ALJ to determine. See Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it 19 is the responsibility of the ALJ ... to determine residual functional capacity.”). 20 Here, Plaintiff argues the ALJ had “no reasonable basis for the limitations in [the] RFC” 21 because (1) he found the state agency opinions unsupported; (2) he “disagreed with Plaintiff’s 22 own assessment that he was unable to perform any work on a regular basis due to back pain, neck 23 pain, headache pain, breathing disorders, and depression; and (3) he was “unpersuaded” by Dr. 24 Harris’ opinion that Plaintiff was limited to standing, walking, and sitting no more than two hours 25 in an eight-hour workday (Doc. No. 16 at 16-21). First, as discussed infra, the ALJ properly 26 considered Dr. Harris’ opined limitations under the revised regulations and found her opinion was 27 unpersuasive. Second, Plaintiff does not specifically challenge the ALJ’s finding that the state 28 agency medical consultants’ opinion that Plaintiff had no severe physical impairments was 1 unpersuasive because it was inconsistent with the relevant medical evidence of record. (AR 28); 2 20 C.F.R. § 416.920c(c); See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 3 (9th Cir. 2008) (court may decline to consider issues not raised with specificity in plaintiff’s 4 opening brief). Moreover, even assuming, arguendo, that the ALJ erred in considering the 5 severity of impairments at step two, any error would be harmless because step two was resolved 6 in Plaintiff’s favor. See Buck v. Berryhill, 869 F.3d 1040, 1046 (9th Cir. 2017) (holding any error 7 in omitting an impairment from the severe impairments identified at step two was harmless 8 because step two was resolved in the claimant’s favor and he “could not possibly have been 9 prejudiced”; and further noting that the RFC “should be exactly the same regardless of whether 10 certain impairments are considered ‘severe’ or not” because in assessing the RFC the adjudicator 11 is directed to consider all limitations and restrictions imposed by the claimant’s impairments 12 regardless of severity). 13 Third, Plaintiff appears to argue the RFC is not supported by substantial evidence because 14 the ALJ improperly rejected Plaintiff’s symptom claims, including the need to lay down with a 15 heating pad for “many hours a day” and limitations in walking due to shortness of breath. (Doc. 16 No. 16 at 19-21). An ALJ engages in a two-step analysis when evaluating a claimant’s testimony 17 regarding subjective pain or symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 18 2007). The ALJ first must determine whether there is “objective medical evidence of an 19 underlying impairment which could reasonably be expected to produce the pain or other 20 symptoms alleged.” Id. (internal quotation marks omitted). “The claimant is not required to 21 show that his impairment could reasonably be expected to cause the severity of the symptom he 22 has alleged; he need only show that it could reasonably have caused some degree of the 23 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks 24 omitted). Second, “[i]f the claimant meets the first test and there is no evidence of malingering, 25 the ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 26 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d 27 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are 28 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 1 undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 2 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a 3 credibility determination with findings sufficiently specific to permit the court to conclude that 4 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and convincing 5 [evidence] standard is the most demanding required in Social Security cases.” Garrison v. 6 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 7 F.3d 920, 924 (9th Cir. 2002)). 8 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably 9 be expected to cause some of the alleged symptoms; however, Plaintiff’s “statements concerning 10 the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with 11 the medical evidence and other evidence in the record” for several reasons. (AR 26). Plaintiff 12 generally argues that these reasons do not constitute clear and convincing reasons for rejecting 13 Plaintiff’s subjective complaints. (Doc. No.16 at 20-21). This argument is unavailing. 14 As an initial matter, the ALJ noted that the record includes Plaintiff’s reports that he 15 helped his father as a caretaker, and he was able to engage in daily activities “not without 16 limitations” including going to church, reading, listening to music, walking, playing cards, and 17 doing word search puzzles. (AR 27, 59, 204, 309, 317, 538, 540). The ALJ also cited evidence 18 that Plaintiff worked in a prison kitchen for 10 years until his release in early 2021. (AR 27, 264, 19 309 (“working full-time in a kitchen”)). A claimant need not be utterly incapacitated in order to 20 be eligible for benefits. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Orn v. Astrue, 21 495 F.3d 625, 639 (9th Cir. 2007) (“the mere fact that a plaintiff has carried on certain activities . 22 . . does not in any way detract from her credibility as to her overall disability.”). However, even 23 where daily activities “suggest some difficulty functioning, they may be grounds for discrediting 24 the [Plaintiff’s] testimony to the extent that they contradict claims of a totally debilitating 25 impairment.” Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (internal citations 26 omitted), superseded on other grounds by 20 C.F.R. § 416.920(a). 27 Plaintiff argues the ALJ did not provide the requisite explanation for how Plaintiff’s 28 ability to perform these activities is “equivalent to medium, full-time work,” and the ALJ did not 1 consider Plaintiff’s testimony that he took care of his father with the help of his siblings and an 2 independent caregiver, and only for a two-month period. (Doc. No. 16 at 20-21 (citing AR 58, 3 332)). However, as noted by Defendant, contemporaneous treatment records include Plaintiff’s 4 own reports that he was “busy helping his father, as caretaker,” including helping him dress and 5 pushing him in a wheelchair outdoors, and Plaintiff testified that his work as a kitchen helper 6 included mopping, cleaning, serving, sweeping, and loading, “despite his allegedly debilitating 7 symptoms.” (Doc. No. 20 at 6 (citing AR 53-54, 59, 264, 538, 540)). Thus, regardless of 8 evidence that could be viewed more favorably to Plaintiff it was reasonable for the ALJ to 9 conclude that Plaintiff’s reports that he was able to care for his father and work in the kitchen, 10 was inconsistent with the severity of his allegations of entirely disabling limitations including an 11 inability to stand and walk for more than 15 minutes at a time. Molina, 674 F.3d at 1113 12 (Plaintiff’s activities may be grounds for discrediting Plaintiff’s testimony to the extent that they 13 contradict claims of a totally debilitating impairment); see also Tommasetti, 533 F.3d at 1040 14 (ALJ may draw inferences logically flowing from evidence); Burch, 400 F.3d at 679 (where 15 evidence is susceptible to more than one interpretation, the ALJ’s conclusion must be upheld). 16 Finally, even assuming, as argued by Plaintiff, that the ALJ’s “rationale that Plaintiff can perform 17 activities such as word search puzzles and playing cards also fails to support the conclusion that 18 Plaintiff can perform medium work, given the fact that the activities cited are entirely sedentary 19 in nature,” any error is harmless because the ALJ’s ultimate rejection of Plaintiff’s symptom 20 claims was supported by substantial evidence. See Carmickle, 533 F.3d at 1162-63 (9th Cir. 21 2008). 22 Moreover, as seemingly acknowledged by Plaintiff, the ALJ rejected Plaintiff’s symptom 23 claims for additional reasons, including (1) “claimant’s course of treatment and diagnostic tests 24 and examination results do not appear to be commensurate with the symptomology reported”; (2) 25 objective medical evidence and examination results are generally “mild, normal, and/or 26 unremarkable”; and (3) Plaintiff’s inconsistent statements “call into question his honesty 27 regarding the allegations of an inability to work, and suggests that his symptoms may not be 28 severe as their allegations would indicate.” (AR 26-27); see Doc. No. 16 at 20. The Court may 1 decline to consider this issue as Plaintiff fails to identify or challenge this specific reason for 2 discounting Plaintiff’s symptom claims in his opening brief. See Carmickle, 533 F.3d at 1161 n.2 3 (court may decline to address issue not raised with specificity in Plaintiff’s briefing); Kim v. 4 Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the Court may not consider on appeal issues not 5 “specifically and distinctly argued” in the party’s opening brief). Regardless, minimal and 6 conservative treatment consisting of “medications, chiropractic care, and counseling on diet” (AR 7 26, 280 (reporting he uses inhaler and denies shortness of breath), 359, 362, 508, 534); 8 unremarkable objective medical evidence and examination results (26, 283, 357-58, 460, 468, 9 472, 477, 481, 486, 498, 503, 549 (normal chest x-ray)); and Plaintiff’s inconsistent statements 10 regarding his work history and whether he smoked tobacco (AR 26, 60 (testifying he does not 11 smoke cigarettes), 459 (“never smoker”), 476 (reporting he smoke one pack of cigarettes per 12 day), 53-57 (testifying he worked before prison as a sandblaster and painter, and worked in the 13 prison kitchen for 10 years), 173-74 (earnings record from 1980’s showing work), 191 (reporting 14 he never worked)), are clear convincing, and unchallenged reasons for the ALJ to discount 15 Plaintiff’s symptoms when formulating the RFC. See Parra v. Astrue, 481 F.3d 742, 751 (9th 16 Cir. 2007) (evidence of “conservative treatment” may be sufficient to discount a claimant's 17 testimony regarding the severity of an impairment); Rollins v. Massanari, 261 F.3d 853, 857 (9th 18 Cir. 2001) (medical evidence is a relevant factor in determining the severity of a claimant’s pain 19 and its disabling effects, but the ALJ may not discredit a claimant’s pain testimony and deny 20 benefits solely because the degree of pain is not supported by objective medical evidence); Warre 21 v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (conditions effectively 22 controlled with medication are not disabling for purposes of determining eligibility for benefits); 23 Popa v. Berryhill, 871 F.3d 901, 906 (9th Cir. 2017) (an ALJ may consider inconsistent 24 statements by a claimant in assessing his or her reported symptom claims). 25 Next, Plaintiff argues that because the ALJ rejected the medical opinions and Plaintiff’s 26 testimony, “it is evident that the ALJ relied on his own lay interpretation of the evidence. This is 27 especially the case in the instant matter, inasmuch as the ALJ has interpreted the findings on x-ray 28 on his own, as neither state agency reviewing doctor reviewed same, and the ALJ rejected 1 limitations imposed by the only physician that had interpreted the x-ray results, namely, Dr. 2 Harris.” (Doc. No. 16 at 17). Here, however, the ALJ provided a review of the medical evidence, 3 including evidence that could be considered more favorable to Plaintiff, such as the November 4 2021 x-ray results revealing decreased disc space and osteoarthritic changes, and examination 5 findings of tenderness of the paracervicals and occipital bone, soreness of the thoracic ribs, 6 tenderness of the posterior superior iliac spine and sacroiliac joint, and pain with lumbar mobility. 7 (AR 26). As argued by Defendant, it is “precisely the role of the ALJ to review [this] evidence. 8 In fact, the regulations expressly provide that an ALJ must consider objective medical evidence in 9 evaluating a disability claim, including ‘medical signs’ (which are ‘shown by medically 10 acceptable clinical diagnostic techniques’) and ‘laboratory findings’ (including ECGs and x-rays) 11 in evaluating opinions.” (Doc. No. 20 at 8-9 (citing 20 C.F.R. §§ 416.913(a)(1), 416.902)); see 12 also Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (“the ALJ is 13 responsible for translating and incorporating clinical findings into a succinct RFC”); Bufkin v. 14 Saul, 836 Fed. App’x 578, 579 (9th Cir. 2021) (“Contrary to [plaintiff’s] argument, the ALJ did 15 not rely on her ‘lay interpretation’ of medical evidence. Rather, the ALJ simply summarized the 16 medical evidence from [physicians]; she did not interpret any x-rays or test results directly. ALJs 17 need not seek the opinion of a medical expert every time they review new medical evidence and 18 make a RFC determination.”). Moreover, Plaintiff does not cite any well-supported functional 19 limitations in the medical record that were not properly accounted for the in the assessed RFC. 20 As discussed above, the ALJ properly discounted Plaintiff symptom claims, including difficulty 21 walking, shortness of breath, and the need to lay down throughout the day; and as discussed 22 below, the ALJ properly considered Dr. Harris’ opinion under the regulations and found it was 23 unpersuasive. 24 For the foregoing reasons, the Court finds no error in the ALJ’s assessment of the RFC 25 based on all relevant evidence in the record. (AR 25-28); see Bayliss, 427 F.3d at 1217. 26 B. Medical Opinion 27 For claims filed on or after March 27, 2017, new regulations apply that change the 28 framework for how an ALJ must evaluate medical opinion evidence. Revisions to Rules 1 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2 2017); 20 C.F.R. § 416.920c. The new regulations provide that the ALJ will no longer “give any 3 specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 2017 WL 168819, 4 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 416.920c(a). Instead, an ALJ must consider and 5 evaluate the persuasiveness of all medical opinions or prior administrative medical findings from 6 medical sources. 20 C.F.R. § 416.920c(a) and (b). The factors for evaluating the persuasiveness 7 of medical opinions and prior administrative medical findings include supportability, consistency, 8 relationship with the claimant (including length of the treatment, frequency of examinations, 9 purpose of the treatment, extent of the treatment, and the existence of an examination), 10 specialization, and “other factors that tend to support or contradict a medical opinion or prior 11 administrative medical finding” (including, but not limited to, “evidence showing a medical 12 source has familiarity with the other evidence in the claim or an understanding of our disability 13 program’s policies and evidentiary requirements”). 20 C.F.R. § 416.920c(c)(1)-(5). 14 Supportability and consistency are the most important factors, and therefore the ALJ is 15 required to explain how both factors were considered. 20 C.F.R. § 416.920c(b)(2). 16 Supportability and consistency are explained in the regulations: 17 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or 18 her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) 19 will be. 20 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical 21 sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 22 23 20 C.F.R. § 416.920c(c)(1)-(2). The ALJ may, but is not required to, explain how the other 24 factors were considered. 20 C.F.R. § 416.920c(b)(2). However, when two or more medical 25 opinions or prior administrative findings “about the same issue are both equally well-supported ... 26 and consistent with the record ... but are not exactly the same,” the ALJ is required to explain how 27 “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 28 C.F.R. § 416.920(b)(3). 1 The Ninth Circuit has additionally held that the new regulatory framework displaces the 2 longstanding case law requiring an ALJ to provide “specific and legitimate” or “clear and 3 convincing” reasons for rejecting a treating or examining doctor’s opinion. Woods v. Kijakazi, 32 4 F.4th 785 (9th Cir. 2022). Nonetheless, in rejecting an examining or treating doctor’s opinion as 5 unsupported or inconsistent, an ALJ must still provide an explanation supported by substantial 6 evidence. Id. at 792. This means that the ALJ “must ‘articulate ... how persuasive’ [he or she] 7 finds ‘all of the medical opinions’ from each doctor or other source ... and ‘explain how [he or 8 she] considered the supportability and consistency factors’ in reaching these findings.” Id. (citing 9 20 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 10 In January 2022, chiropractor Jeanette Harris, DC, completed a physical medical source 11 statement and opined that Plaintiff can walk half a city block without rest or severe pain, can sit 12 for 30 minutes at one time before needing to get up, can stand for 20 minutes at one time before 13 needing to sit down or walk around, can sit, stand and walk for less than 2 hours total in an 8-hour 14 working day, needs a job that permits shifting positions at will from sitting, standing, or walking, 15 needs periods of walking around every 45 minutes for 10 minutes at a time during an 8-hour 16 working day, does not need to elevate his legs, does not need a cane or assistive device, can lift 17 and carry less than 10 pounds frequently and 10 pounds occasionally, can never climb ladders, 18 can rarely climb stairs, and can occasionally twist, stoop, crouch, and squat. (AR 447-49). Dr. 19 Harris also opined that Plaintiff would be off task 20% of a typical workday, was capable of 20 “moderate stress – normal work,” would likely be absent from work about three days per month, 21 and would need to take unscheduled breaks once or twice during a working day for 10 minutes at 22 a time. (AR 449-50). The ALJ found Dr. Harris’ opinion was not persuasive for several reasons. 23 First, as to supportability, the ALJ found Dr. Harris’ opinion is supported by “little, if any 24 explanation. Dr. Harris offered no rationale, for example, in finding the claimant would be off- 25 task and absent from work to the degree opined. At the time, Dr. Harris had treated the claimant 26 for only two months and therefore did not obtain a longitudinal view of his condition.” (AR 27). 27 As an initial matter, while the ALJ is permitted to consider the length, purpose, and extent of the 28 treating relationship in considering the persuasiveness of a medical opinion under the new 1 regulations (20 C.F.R. § 404.1520c(c)(3)), the fact that Dr. Harris saw Plaintiff for “only two 2 months,” standing alone, is not a legally sufficient basis for rejecting the opinion. See 20 C.F.R. § 3 416.920c(a) (directing ALJ to consider and evaluate the persuasiveness of all medical opinions or 4 prior administrative findings from medical sources); see also Mary Elizabeth C. v. Saul, 2020 WL 5 2523116, at *8 (C.D. Cal. May 18, 2020) (finding ALJ improperly discounted examining opinion 6 on the basis that the evaluation was based on a single examination). Regardless, in addition to the 7 limited treating relationship, the ALJ also noted that there was little to no explanation in the 8 opinion for the severe limitations opined by Dr. Harris, particularly as to Plaintiff’s propensity to 9 be off task and absent from work to the degree opined. (AR 27). 10 Plaintiff argues “the rejection of opinions that are otherwise supported by chart notes are 11 not conclusory.” (Doc. No. 16 at 23); see Garrison v. Colvin, 759 F3d 1013 (9th Cir. 2014) 12 (when a treating physician’s check-box opinion was “based on significant experience with 13 [Plaintiff] and supported by numerous records, [it was] therefore entitled to weight that an 14 otherwise unsupported and unexplained check-box form would not merit.”). As pointed out by 15 Defendant, the revised regulations specifically provide that “the more relevant the objective 16 medical evidence and supporting explanations presented by a medical source are to support” the 17 medical opinion, the more persuasive the medical opinion will be. 20 C.F.R. § 416.920c(c)(1) 18 (emphasis added); Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (“the ALJ may permissibly 19 reject check-off reports that do not contain any explanation of the bases of their conclusion.”); see 20 also Gitchell v. Comm'r of Soc. Sec., 2023 WL 1785914, at *15 (E.D. Cal. Feb. 6, 2023) (holding 21 ALJ appropriately considered supportability factor by finding opining doctor did not cite to 22 specific objective findings to support his opinions). Thus, while Dr. Harris’ opinion and 23 treatment notes list objective findings including decreased range of motion in the cervical and 24 lumbar spine and tenderness of the paracervicals and occipital protuberance (AR 26), it was 25 nonetheless reasonable for the ALJ to find her opinion non-persuasive based on a lack of 26 supporting explanation “presented by” Dr. Harris to support the severity of the opined limitations, 27 particularly as to Plaintiff’s concentration and attendance. (AR 27). 28 Second, as to consistency, the ALJ found Dr. Harris’ opinion inconsistent with her own 1 treatment notes, including normal musculoskeletal findings and neurological findings in 2 December 2021. (AR 27, 474-78). Both parties acknowledge that the ALJ misattributed this 3 treatment note to Dr. Harris, as opposed to Imade Osaghae, P.A. (See AR 474-78). Plaintiff 4 argues “this failure to accurately connect Dr. Harris’ findings to Dr. Harris’ opinion constitutes a 5 mischaracterization of the evidence in an attempt to diminish the consistency of the treating 6 records with the treating opinion.” (Doc. No. 16 at 24). Defendant argues “the fact remains that 7 the ALJ relied on it, and it highlighted the inconsistency of [Dr. Harris’] medical opinion.” (Doc. 8 No. 20 at 11). Under the revised regulations, the more consistent a medical opinion is with the 9 evidence from other medical sources and nonmedical sources in the claim, the more persuasive 10 the medical opinion will be. 20 C.F.R. § 416.920c(c)(2). Thus, it was arguably reasonable for 11 the ALJ to cite evidence of normal movement of all extremities, normal musculoskeletal findings, 12 and normal gait and station in the longitudinal record, as inconsistent with the limitations opined 13 by Dr. Harris including sitting, standing, and walking for less than 2 hours in an 8-hour workday 14 and needing to change positions every 20-30 minutes. (See AR 477). 15 Irrespective of the ALJ’s consideration of the supportability and consistency factors 16 according to the revised regulations, the ALJ additionally found “Dr. Harris indicated the opined 17 limitations only began in January 2022, the date she completed the medical source statement. 18 Accordingly, I do not find this opinion persuasive.” (AR 27). To be found disabled, a claimant 19 must be unable to engage in any substantial gainful activity due to an impairment which “can be 20 expected to result in death or which has lasted or can be expected to last for a continuous period 21 of not less than 12 months.” 20 C.F.R. § 404.1505; see also Chaudhry v. Astrue, 688 F.3d 661, 22 672 (9th Cir. 2012). Thus, even assuming, arguendo, that the ALJ erred in considering Dr. Harris’ 23 opinion, any error would be harmless because the assessed limitations do not meet the Social 24 Security Administration's duration requirement. See Daniel v. Kijakazi, 2023 WL 5956813, at *8 25 (E.D. Cal. Sept. 13, 2023) (“Because the limitation did not meet the twelve-month duration 26 requirement, [any] error in addressing the limitation is nonprejudicial and therefore harmless 27 error.”); Salvas v. Berryhill, 2017 WL 3731994, at *4 (C.D. Cal. Aug. 28, 2017) (citing 28 Tommasetti, 533 F.3d at 1038) (finding because limitations do not meet the durational 1 | requirement, they are not probative, and “[a]ny failure to give reasons for not adopting these 2 | limitations is harmless error.”). 3 VIII. CONCLUSION 4 A reviewing court should not substitute its assessment of the evidence for the ALJ’s. 5 | Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must defer to an ALJ’s assessment 6 | as long as it is supported by substantial evidence. 42 U.S.C. § 405(g). As discussed in detail 7 | above, the ALJ properly considered the medical opinion evidence and properly assessed the RFC. 8 | After review, the Court finds the ALJ’s decision is supported by substantial evidence and free of 9 | harmful legal error. 10 Accordingly, it is ORDERED: 11 1. Plaintiff's Motion for Summary Judgment (Doc. No. 16) is DENIED. 12 2. Defendant’s Cross-Motion for Summary Judgment (Doc. No. 20) is GRANTED and 13 the decision of the Commissioner of Social Security is AFFIRMED for the reasons set 14 forth above. 15 3. The Clerk is directed to enter judgment in favor of the Commissioner of Social 16 Security, terminate any pending motions/deadlines, and close this case. 17 | Dated: __August 14, 2024 Mihaw. Wh. foareh Zaskth 19 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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