1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NOELL SIERRA CRUMMETT, Case No. 2:22-cv-00593-JDP (SS) 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security 15 Defendant. 16 17 Plaintiff challenges the final decision of the Commissioner of Social Security 18 (“Commissioner”) denying her applications for child’s insurance benefits (“CIB”) and 19 supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act. Both 20 parties have moved for summary judgment. ECF Nos. 15 & 20. For the reasons discussed below, 21 the court denies plaintiff’s motion and grants the Commissioner’s motion. 22 Standard of Review 23 An Administrative Law Judge’s (“ALJ”) decision denying an application for disability 24 benefits will be upheld if it is supported by substantial evidence in the record and if the correct 25 legal standards have been applied. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th 26 Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but less than a 27 preponderance; it is such relevant evidence as a reasonable person might accept as adequate to 28 support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 1 “The ALJ is responsible for determining credibility, resolving conflicts in medical
2 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001)
3 (citations omitted). “Where the evidence is susceptible to more than one rational interpretation,
4 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v.
5 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court will not affirm on grounds upon
6 which the ALJ did not rely. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are
7 constrained to review the reasons the ALJ asserts.”).
8 A five-step sequential evaluation process is used in assessing eligibility for Social Security
9 disability benefits. Under this process, the ALJ is required to determine: (1) whether the claimant
10 is engaged in substantial gainful activity; (2) whether the claimant has a medical impairment (or
11 combination of impairments) that qualifies as severe; (3) whether any of the claimant’s 12 impairments meet or medically equal the severity of one of the impairments in 20 C.F.R., Pt. 404, 13 Subpt. P, App. 1; (4) whether the claimant can perform past relevant work; and (5) whether the 14 claimant can perform other specified types of work. See Barnes v. Berryhill, 895 F.3d 702, 704 15 n.3 (9th Cir. 2018). The claimant bears the burden of proof for the first four steps of the inquiry, 16 while the Commissioner bears the burden at the final step. Bustamante v. Massanari, 262 F.3d 17 949, 953-54 (9th Cir. 2001). 18 Background 19 In July 2017, plaintiff filed applications for CIB and SSI, alleging disability beginning 20 December 11, 1998. Administrative Record (“AR”) 358-65. After her applications were denied 21 initially and upon reconsideration, plaintiff appeared and testified at a hearing before an 22 Administrative Law Judge (“ALJ”). AR 64-103, 200-09, 215-26. On September 22, 2020, the 23 ALJ issued a decision finding that plaintiff was not disabled. AR 175-89. The Appeals Council 24 granted plaintiff’s request for review, vacated the ALJ’s decision, and remanded for further 25 proceedings. AR 196-97. 26 On June 24, 2021, plaintiff appeared and testified at a second hearing before the ALJ. AR 27 35-63. On September 10, 2021, the ALJ issued a new decision again finding that plaintiff was not 28 disabled. AR 11-28. Specifically, the ALJ found that: 1 1. Born [in] 1998, the claimant had not attained age 22 as of December 11, 1998, the alleged onset date. 2 2. The claimant has not engaged in substantial gainful activity since 3 December 11, 1998, the alleged onset date.
4 3. The claimant has the following severe impairments: Cerebral Palsy 5 with hemiplegia and borderline intellectual functioning; anxiety disorder; and status post right foot tendon release. 6 7 * * *
8 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of 9 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
10 * * * 11 5. After careful consideration of the entire record, the undersigned 12 finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 13 416.967(b) except as follows: the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; she can stand 14 and/or walk for a total of 2 hours in an 8-hour workday, in 20 15 minute increments; she can sit for 6 hours out of an 8-hour workday; she can occasionally push, pull, and/or engage in foot 16 controls with the lower extremities; no ladders, ropes, or scaffolding; she can occasionally climb ramps and stairs, balance, 17 stoop, kneel, crouch, and crawl; she can frequently reach, handle, and finger with the non-dominant right upper extremity; she should 18 avoid working at heights and around dangerous machinery; she can 19 understand, remember, and apply simple job instructions; she can maintain concentration, persistence, and pace for simple job tasks 20 in 2 hour increments in an 8-hour workday; she can interact with co-workers but not on a teamwork type of work assignment; she 21 should avoid work with the public; she can interact with supervisors; and she can deal with occasional changes in the work 22 setting or routine. 23 * * * 24 6. The claimant has no past relevant work. 25
7. The claimant was born [in] 1998 and was 0 years old, which is 26 defined as a younger individual age 18-49, on the alleged disability 27 onset date.
28 8. The claimant has at least a high school education. 1 * * * 2 9. Transferability of job skills is not an issue because the claimant 3 does not have past relevant work.
4 10. Considering the claimant’s age, education, work experience, and 5 residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform. 6 7 * * *
8 11. The claimant has not been under a disability, as defined in the Social Security Act, from December 11, 1998, through the date of 9 this decision.
11 AR 14-27 (citations to the code of regulations omitted). 12 Plaintiff requested review by the Appeals Council, which denied the request. AR 1-5. She 13 now seeks judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3). 14 Analysis 15 Plaintiff advances four primary arguments. First, she contends that the ALJ failed to 16 consider whether she satisfied Listing 12.05(B). Second, she argues that the ALJ improperly 17 rejected her subjective complaints and her mother’s testimony. Third, she argues that the ALJ 18 failed to properly weigh the medical opinion evidence. Finally, she claims that the ALJ erred by 19 concluding that there were sufficient jobs available in the national economy that she could 20 perform.1 None of these arguments is persuasive. 21 A. Listing 12.05(B) 22 Plaintiff argues that the ALJ erred by failing to consider whether her impairments 23 1 Plaintiff’s motion presents these arguments in a different order. The motion also contains 24 several arguments—some consisting of no more than a sentence or two—that are insufficiently developed for the court to evaluate. See, e.g., ECF No. 15 at 17 (“Psycho-educational evaluations. 25 The decision failed to evaluate the school psychologist’s reports, pregnant with objective, as well as other, information, including the 69 and 70 [IQ scores], discussed above in argument B.”) 26 (emphasis omitted). These arguments are deemed waived. See Hibbs v. Dep’t of Human Res., 273 27 F.3d 844, 873 (9th Cir. 2001) (finding that the appellant’s failure to develop his argument rendered it incapable of assessment by the court); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 28 1161 n.2 (9th Cir. 2008) (declining to address whether the ALJ properly rejected claims of 1 medically equaled the criteria for Listing 12.05(B). ECF No. 15 at 11-13. She asserts that the
2 “record demanded [she] be considered for equivalency to listing 12.05B,” noting that she received
3 a full-scale IQ score of 74 and that her severe impairments include borderline intellectual
4 functioning. Id. at 11-12. The Commissioner contends that plaintiff has waived her 12.05(B)
5 argument by failing to raise it at the administrative level. ECF No. 20 at 23. Plaintiff’s argument
6 is unpersuasive.
7 As an initial matter, the ALJ was not required to evaluate whether plaintiff’s impairments
8 were medically equivalent to Listing 12.05(B). “An ALJ is not required to discuss the combined
9 effects of a claimant’s impairments or compare them to any listing in an equivalency
10 determination, unless the claimant presents evidence in an effort to establish equivalence.” Burch
11 v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005); see Lewis v. Apfel , 236 F.3d 503, 514 (9th Cir. 12 2001) (holding that the ALJ did not error by filing to consider whether the claimant’s impairments 13 equaled when the claimant “offered no theory, plausible or otherwise, as to how his seizure 14 disorder and mental retardation combined to equal a listed impairment”); Ford v. Saul, 950 F.3d 15 1141, 1157 (9th Cir. 2020) (“Because the ALJ did not have an obligation to discuss medical 16 equivalency sua sponte, the ALJ did not err in failing to do so.”). Plaintiff did not argue medical 17 equivalency at the administrative level. Accordingly, the ALJ did not err by failing to perform 18 that evaluation. 19 Plaintiff’s failure to raise this issue at the administrative level also forecloses her from 20 properly raising it now. “[W]hen claimants are represented by counsel, they must raise all issues 21 and evidence at their administrative hearings in order to preserve them on appeal.” Meanel v. 22 Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). A court will excuse a failure to comply with this rule 23 only “when necessary to avoid a manifest injustice . . . .” Id. Plaintiff was represented by counsel 24 at the June 24, 2021 hearing. AR 63-64. Counsel neither raised Listing 12.05(B) at the hearing 25 nor addressed the listing in the brief submitted to the ALJ. AR 63-64, 494-95. Plaintiff also has 26 not demonstrated that a manifest injustice will result if her argument is deemed waived. Although 27 memory problems because the plaintiff “failed to argue this issue with any specificity in his 28 briefing”). 1 she contends that she satisfies the listing’s criteria, she does not identify the specific evidence
2 supporting her position. Instead, she merely faults the ALJ for not considering that listing given
3 her IQ score, which reflects diminished intellectual functioning. Accordingly, plaintiff is
4 foreclosed from challenging the ALJ’s failure to consider Listing 12.05(B). See Mays v. Colvin,
5 No. 1:13-cv-00904-SKO, 2014 WL 3401385, *12 (E.D. Cal. July 11, 2014) (holding that the
6 claimant waived his argument that he satisfied listing 12.05(C) by failing to raise the issue at the
7 administrative level).2
8 B. Rejection of Plaintiff’s and Her Mother’s Testimony
9 Plaintiff argues that the ALJ improperly discounted her subjective complaints and her
10 mother’s testimony without providing legally sufficient reasons for doing so. ECF No. 15 at 8-
11 11. 12 In the Ninth Circuit, courts follow a “two-step analysis for determining the extent to which 13 a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th 14 Cir. 2017). “‘First, the ALJ must determine whether the claimant has presented objective medical 15 evidence of an underlying impairment which could reasonably be expected to produce the pain or 16 other symptoms alleged.’” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 17 2014)). If the claimant meets this requirement, the ALJ can reject her symptom testimony only 18 by offering specific, clear, and convincing reasons for doing so. Id. “This is not an easy 19 requirement to meet: the clear and convincing standard is the most demanding required in Social 20 Security cases.” Id. The ALJ’s reasons must also be supported by substantial evidence in the 21 record. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 22 Plaintiff testified that she is able to perform chores—including doing laundry, cleaning 23 2 Even if the court were to determine that the ALJ should have specifically considered 24 Listing 12.05(B), any error in failing to do so would be harmless. In addition to requiring certain IQ scores, the listing requires deficits in adaptive function manifested by an extreme limitation of 25 one, or marked limitation of two, in the following areas: (1) understanding, remembering, and applying information; (2) interacting with others; (3) concentration, persistence, or maintaining 26 pace; and (4) adapting or managing oneself. 20 C.F.R Part 404, Subpart P, Appendix 1, 27 § 12.05(B). In assessing whether plaintiff satisfied Listing 12.11’s criteria, the ALJ considered how plaintiff’s mental impairments limited her ability to function in each of the four areas. Thus, 28 the ALJ tacitly concluded that plaintiff did not meet or medically equal Listing 12.05(B). 1 dishes, and cooking meals—although she needs reminders and some assistance from her mother.
2 AR 39, 83, 91. She can walk for twenty minutes before needing to rest, has no difficulty with
3 sitting, and is able to lift at least ten pounds. AR 41, 48. She reported weakness in her right hand
4 that makes it more difficult to perform various activities, including typing, using a razor, styling
5 her hair, and holding objects. AR 41-44, 74-76, 85. She can go to the grocery store alone,
6 although her mother frequently accompanies her. AR 46-47, 79. She reported having anxiety
7 when in public, AR 80-81, but denied any issues with depression, AR 47.
8 She also stated that she has difficulty focusing when working on hard tasks. AR 47. She
9 endorsed memory problems, explaining that when talking to another person she “can’t remember .
10 . . the first few words they said . . . .” Id. She also reported difficulty in school, noting that she
11 struggled with math. AR 71. Although plaintiff testified that she spent most of her time 12 “lounging” at home, she stated that she occasionally attends family gatherings and enjoys reading 13 and riding her quad bike. AR 52, 87, 89. 14 In assessing plaintiff’s RFC, the ALJ accounted for many of the limitations described in 15 plaintiff’s testimony. However, the ALJ concluded that several of plaintiff’s statements were not 16 fully credible. AR 19-23. First, the ALJ observed that plaintiff’s claim that she cannot remember 17 the first few words that people say to her was inconsistent with her behavior at the hearing. AR 18 18. As observed by the ALJ, plaintiff demonstrated no difficulty remembering and responding to 19 the ALJ’s questions. Id. 20 Plaintiff argues that the ALJ’s reliance on her own observations is inappropriate. ECF 21 No. 15 at 19. As noted by plaintiff, the Ninth Circuit has been critical of ALJs relying heavily on 22 their own observations in assessing credibility. See Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th 23 Cir. 1999). Nevertheless, “[t]he inclusion of the ALJ’s personal observations does not render the 24 decision improper.” Morgan v. Commissioner, 169 F.3d 595, 600 (9th Cir. 1999). Here, the ALJ 25 found that plaintiff’s allegation that she cannot remember the first words spoken to her was 26 inconsistent with her ability to answer all questions without difficulty. The ALJ properly relied 27 on this inconsistency to find that plaintiff’s alleged memory limitations were not credible. See 28 Verduzco, 188 F.3d at 1090. This is especially true given that the ALJ did not rely solely on her 1 own observations in assessing plaintiff’s memory. The ALJ also observed that a psychological
2 evaluation showed that plaintiff had fair memory skills for recently learned information. AR 21,
3 554.
4 The ALJ also properly found that plaintiff’s work history—or lack thereof—and rejection
5 of adult services—including those geared at promoting independent living, employment, and
6 education—undermined her allegations of debilitating symptoms. AR 18; 465, 957. As observed
7 by the ALJ, the fact that plaintiff has never worked and has declined services intended to, among
8 other things, assist her in obtaining employment, suggests that a lack of desire, rather than
9 disability, may account for her current unemployment. AR 18; see Thomas v. Barnhart, 278 F.3d
10 947, 959 (9th Cir. 2002) (holding that the ALJ properly concluded that the plaintiff’s “poor work
11 history” adversely “affected her credibility regarding her inability to work”); Kellner v. Colvin, 12 603 F. App’x 592, 593 (9th Cir. 2015) (unpublished) (holding that the ALJ’s finding that the 13 claimant “did not make ‘even a good faith effort to find gainful employment’ is also a clear and 14 convincing reason to discount her credibility”). 15 The ALJ also properly found that plaintiff’s daily activities were not fully consistent with 16 an inability to work. AR 19. As observed by the ALJ, notwithstanding plaintiff’s complaints of 17 right-hand weakness, she was able to perform household chores—albeit with some reminders or 18 assistance from her mother—ride a quad bike, drive a car, perform personal care, and attend 19 appointments alone.3 AR 19, 41-44, 52, 74-76. Although these activities are limited in nature, 20 the ALJ did not err in concluding that plaintiff’s ability to perform these activities demonstrated 21 an ability to frequently perform fine and gross manipulative activities with her right hand, to 22 perform simple job tasks, and to interact with coworkers and supervisors. See Stubbs-Danielson 23 v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008). 24 Finally, the ALJ permissibly concluded that plaintiff’s allegations were not fully
25 3 Plaintiff emphasizes that her quad bike was modified. ECF No. 15 at 6. Her mother testified that it had a modified throttle to limit twisting of the wrist. AR 52. Notwithstanding the 26 modified throttle, the ALJ reasonably inferred that plaintiff’s ability to operate a quad bike 27 demonstrated a reasonable ability to perform manipulative activities with her right extremity. Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (holding that “the ALJ is entitled to draw 28 inferences ‘logically flowing from the evidence’”). 1 supported by her medical records. As noted by the ALJ, plaintiff’s treatment records regularly
2 reflected that plaintiff was physically healthy. AR 687 (stating that plaintiff “overall is physically
3 healthy”); 760 (reflecting that plaintiff “is reported to be a generally healthy person”); 958
4 (indicating that plaintiff “is physically healthy overall”). Examinations reflected normal muscle
5 strength in her left extremity and only slightly decreased strength in the right extremity. AR 548,
6 677-78. Although her psychological evaluation showed limitations with memory, her mental
7 status examination showed adequate concentration and attention, a fair fund of knowledge, fair
8 memory skills for recently learned information, fair insight and judgment, and a linear thought
9 process. AR 554. The ALJ properly concluded that plaintiff’s testimony about the severity of her
10 limitations was not fully supported by her medical records. See Morgan, 169 F.3d at 600 (holding
11 that inconsistencies or a lack of support from medical records is a proper basis for discounting a 12 claimant’s subjective testimony). Accordingly, the ALJ provided legally sufficient reasons for 13 her adverse credibility determination. 14 Plaintiff further argues that the ALJ erred by failing to evaluate testimony from her 15 mother, Stacey Crummett. ECF No. 15 at 6-8. “[L]ay witness testimony as to a claimant’s 16 symptoms or how an impairment affects ability to work is competent evidence, and therefore 17 cannot be disregarded without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 18 1996). “Consequently, if the ALJ wishes to discount the testimony of lay witnesses, he must give 19 reasons that are germane to each witness.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 20 1053 (9th Cir. 2006) (alteration and quotation omitted).4 However, “[w]here lay witness 21 testimony does not describe any limitations not already described by the claimant, and the ALJ’s
22 4 The Commissioner argues that under the 2017 revised regulations, ALJs are no longer 23 required to provide germane reasons for discounting third party statements. She argues that while such evidence must still be considered, it can be rejected without explanation. ECF No. 15 at 12- 24 15. Plaintiff contends that the revised regulations only alter the assessment of medical opinions, and that ALJs are still required to provide germane reasons for rejecting third-party statements. Id. 25 at 7-8; ECF No. 23 at 1-3. As explained herein, any error in failing to provide germane reasons for rejecting Stacey Crummett’s testimony was, at most, harmless. Accordingly, the court need not 26 decide whether the germaneness standard continues to apply. See Weitman v. Kijakazi, No. 21- 27 35748, 2022 WL 17175060, at *2 n.4 (9th Cir. Nov. 23, 2022) (declining to address the viability of the germaneness standard under the revised regulations because ALJ’s decision satisfied that 28 standard). 1 well-supported reasons for rejecting the claimant’s testimony apply equally well to the lay witness
2 testimony, it would be inconsistent with our prior harmless error precedent to deem the ALJ’s
3 failure to discuss the lay witness testimony to be prejudicial per se.” Molina v. Astrue, 674 F.3d
4 1104, 1117 (9th Cir. 2012); see Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009).
5 As observed by the ALJ:
6 The claimant’s mother testified that she needed to remind the claimant to shower, groom, and do chores. The claimant’s mother 7 accompanied her to doctor’s appointments. She stated the claimant had a valid driver license, but she did not drive because she was 8 often with her mother who would drive. The claimant’s mother also claimed the claimant felt anxiety when driving. The claimant’s 9 mother alleged the claimant felt anxious counting and exchanging money with a cashier and picking out food. The claimant’s mother 10 contended if the claimant worked consistency would be difficult for her. She alleged that the claimant did not understand that working 11 required her to stick with it even if she was bored, anxious, or frustrated. 12 13 AR 18; see AR 49-55, 92-93. 14 This testimony largely mirrors plaintiff’s testimony, which the ALJ properly rejected due 15 to, among other things, inconsistencies with plaintiff’s medical record. Accordingly, the ALJ’s 16 failure to specify why she rejected Stacey Crummett’s testimony was harmless. See Molina, 674 17 F.3d at 1117 (holding an ALJ’s failure to address lay witness testimony harmless where the ALJ 18 gave valid reasons to reject a claimant’s testimony and the lay witness testimony was similar to 19 the claimant’s testimony). 20 C. Medical Opinion Evidence 21 Plaintiff argues that the ALJ erred in weighing the medical opinion evidence. Specifically, 22 she argues that the ALJ erred in rejecting Dr. Michelina Regazzi’s opinion and in weighing the 23 medical opinion evidence concerning her ability to perform manipulative activities with her right 24 arm.5 ECF No. 15 at 13-20.
25 5 Plaintiff also argues that the ALJ improperly rejected her treating physician’s opinion that she will “require permanent support throughout her life by either a parent or guardian.” ECF No. 26 15 at 18-19. The ALJ permissibly found that statement unpersuasive because, among other things, 27 it did not specify any functional limitations. In any event, the ALJ was not required to explain why that statement was rejected, since it is not a proper medical opinion. See 20 C.F.R. 28 § 404.1513(a)(2) (“A medical opinion medical opinion is a statement from a medical source about 1 Under the Commissioner’s revised regulations, treating physicians’ opinions are no longer
2 entitled to the deference that they enjoyed under the prior regulations’ “physician hierarchy.” See
3 Wood v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Consequently, an ALJ is no longer required
4 to provide “specific and legitimate” reasons for rejecting a treating opinion. See id. Instead, the
5 ALJ is to evaluate each medical opinion’s persuasiveness based on (1) supportability;
6 (2) consistency; (3) the provider’s relationship with the claimant; (4) the provider’s specialization;
7 and (5) other factors, such as “evidence showing a medical source has familiarity with the other
8 evidence in the claim or an understanding of our disability program’s policies and evidentiary
9 requirements.” 20 C.F.R. §§ 416.920c(a), (c)(1)-(5). While all factors must be considered,
10 “supportability” and “consistency” are the primary considerations. 20 C.F.R. § 416.920c(b)(2).
11 “Supportability means the extent to which a medical source suppo rts the medical opinion by 12 explaining the ‘relevant . . . . objective medical evidence.’” Woods, 32 F.4th at 791-92. 13 “Consistency means the extent to which a medical opinion is ‘consistent . . . with the evidence 14 from other medical sources and nonmedical sources in the claim.’” Id. at 792. Now, “the decision 15 to discredit any medical opinion, must simply be supported by substantial evidence.” Id. at 787. 16 However, the ALJ is still required to “provide a coherent explanation of her reasoning” so that 17 judicial review may be effective. Sam-Chankhiao v. Kijakazi, 2022 WL 4222617, *3 (E.D. Cal. 18 Sep. 13, 2022) (citing Hardy v. Comm’r Soc. Sec., 554 F. Supp. 3d 900, 906 (E.D. Mich. 2021)). 19 Plaintiff first argues that the ALJ erred in her consideration of Dr. Regazzi’s opinion. ECF 20 No. 15 at 13-15. In March 2017, plaintiff underwent a comprehensive psychological evaluation 21 with Dr. Regazzi, a licensed psychologist. AR 552-58. Based on that evaluation, Dr. Regazzi 22 opined that plaintiff had mild limitations in completing a workday or workweek without 23 interruption; moderate limitations in performing detailed and complex tasks and working without 24 special or additional supervision; and marked limitations in dealing with the normal stresses 25 encountered in a competitive work environment. AR 558. Dr. Regazzi also concluded that 26 plaintiff was not significantly limited in her ability to maintain regular attendance, perform work 27 what you can still do despite your impairment(s) and whether you have one or more impairment- 28 related limitations or restrictions in the following abilities.”). 1 activities on a consistent basis, accept instruction from supervisors, and interact with coworkers
2 and the general public. Id.
3 The ALJ concluded that Dr. Regazzi’s opinion was partially persuasive, finding that many
4 of the assessed limitations were supported by her own objective findings and consistent with other
5 evidence in the record. AR 18. Plaintiff contends, however, that the ALJ largely ignored Dr.
6 Regazzi’s opinion regarding plaintiff’s moderate limitations and improperly rejected her
7 conclusion that plaintiff had a marked ability to deal with stress. ECF No. 15 at 13-15.
8 Contrary to plaintiff’s contention, the ALJ did not ignore the moderate limitations assessed
9 by Dr. Regazzi. For instance, the ALJ limited plaintiff’s RFC to performing simple job tasks in
10 two-hour increments, AR 17, which is consistent with Dr. Regazzi’s opinion that plaintiff was
11 moderately impaired in performing detailed and complex tasks. T he ALJ also observed that the 12 Dr. Regazzi’s opinion was generally consistent with the record, including evidence that plaintiff 13 needed certain information rephrased or simplified. AR 18. However, the ALJ specifically 14 emphasized that Dr. Regazzi did not have the opportunity to review all of claimant’s educational 15 records, which showed that plaintiff was able to ask for assistance when needed. Id.; see AR 569 16 (reflecting that plaintiff “is a very hard working student[; s]he is a diligent worker and asks 17 questions when needed”). Accordingly, the ALJ properly omitted from plaintiff’s RFC the need 18 for special supervision or additional instructions. See Thomas, 278 F.3d at 554 (holding that 19 courts may not disrupt an ALJ’s logical interpretation of the evidence). Likewise, the ALJ also 20 properly rejected Dr. Regazzi’s opinion that plaintiff has marked limitations in dealing with stress. 21 AR 18. As noted by the ALJ, that opinion was not well supported by the record, and was undercut 22 by evidence that plaintiff had fair insight and judgment and was able to ask appropriate questions 23 when needed. Id. The ALJ reasonably inferred that such evidence undermined Dr. Regazzi’s 24 opinion that plaintiff was unable to deal with the normal stresses encountered in a competitive 25 work environment. See Macri, 93 F.3d at 544 (holding that the ALJ is permitted to make logical 26 inferences). 27 Plaintiff also argues that the ALJ failed to properly account for the findings from Dr. Rajiv 28 Pathak, a consulting physician who examined plaintiff on two separate occasions. ECF No. 15 at 1 15-17. She contends that although Dr. Pathak did not provide an opinion as to plaintiff’s
2 manipulative abilities, he did find that plaintiff’s right arm had slow coordination and “mild
3 spasticity and weakness.” Id. at 15-16; see AR 548-49, 678.
4 Plaintiff’s argument is premised on the erroneous assumption that Dr. Pathak did not
5 consider plaintiff’s ability to use her right arm. As is customary in reports completed by
6 consulting physicians’ reports, Dr. Pathak’s report included an opinion that identified the areas in
7 which plaintiff had functional limitations. AR 549, 678. It did not include an exhaustive list of
8 each specific functional activity that could be performed without limitation. As such, the lack of
9 any manipulative limitations in Dr. Pathak’s report does not indicate an oversight. Rather, the
10 omission reflects Dr. Pathak’s opinion that plaintiff was not limited in her ability to use her right
11 arm. Indeed, Dr. Pathak did not ignore the symptoms resulting fr om plaintiff’s cerebral palsy; he 12 specifically opined that due to her right-sided weakness, plaintiff was limited in performing tests 13 of the amount of weight that she could lift and of her ability to perform postural activities. . 14 D. Reliance of Vocational Expert’s Testimony 15 Finally, plaintiff argues that the ALJ erred in relying on the vocational expert’s testimony 16 that there were sufficient jobs in the national economy that she was able to perform. ECF No. 15 17 at 20-15. Essentially, plaintiff contends that if they ALJ would have properly assessed her 18 functional limitations, she would not be able to perform each of the jobs identified by the 19 vocational expert. As explained, the ALJ properly assessed plaintiff’s RFC. Accordingly, this 20 argument also lacks merit. 21 Accordingly, it is hereby ORDERED that: 22 1. Plaintiff’s motion for summary judgment, ECF No. 15, is denied. 23 2. The Commissioner’s cross-motion for summary judgment, ECF No. 20, is granted. 24 3. The Clerk of Court is directed to enter judgment in the Commissioner’s favor.
25 26 27 28 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ September 29, 2023 Q_—_—. 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14