(SS) Kniffen v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: January 20, 2023
• Docket: 1:21-cv-00703
• Status: Unknown

Opinion

2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 KAREN K. KNIFFEN, Case No. 1:21-cv-00703-SKO 11 Plaintiff,

12 v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT KILOLO KIJAKAZI, 14 Acting Commissioner of Social Security,1 15 Defendant. (Doc. 1)

17 _____________________________________/ 18

19 I. INTRODUCTION 20 Plaintiff Karen K. Kniffen (“Plaintiff”) seeks judicial review of a final decision of the 21 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her applications 22 for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) under the 23 Social Security Act (the “Act”). (Doc. 1.) The matter is currently before the Court on the parties’ 24 briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United 25 States Magistrate Judge.2 26 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 28 of the Commissioner shall, in [their] official capacity, be the proper defendant”). 1 2 Plaintiff protectively filed applications for DIB and SSI payments on August 23, 2017, 3 alleging that she became disabled beginning on July 21, 2015,3 due to herniated discs, diabetic 4 neuropathy, feet ulcers, bad gait from a different left leg surgery, major depression, generalized 5 anxiety disorder, attention-deficit/hyperactivity disorder (“ADHD”), insomnia, and stress. 6 (Administrative Record (“AR”) 42, 110, 114, 131, 146, 164, 293, 298.) Plaintiff was born on 7 August 28, 1958, and she was 58 years old on the date the application was filed. (AR 293, 298.) 8 She has at least a high school education and has past work experience as a substance abuse 9 counselor. (AR 48, 68–69, 115, 123, 140, 160, 178.) 10 A. Relevant Evidence of Record4 11 1. Medical Evidence 12 Plaintiff had previously been diagnosed with depression, generalized anxiety disorder, and 13 ADHD. (AR 1172, 1212, 1272.) In April 2017, she established care at Clinica Sierra Vista and 14 reported her symptoms as “moderate,” yet occurring daily. (AR 1210.) Plaintiff further stated that 15 she “has an extensive mental health history,” including major depression, anxiety, and ADHD, for 16 which she previously received psychiatric care. (Id.) She also reported that at the time, she had a 17 podiatrist who had previously performed multiple foot surgeries and was treating her for a toe 18 infection. (Id.) 19 During examinations at Clinica Sierra Vista, Plaintiff continued reporting symptoms of 20 depression and anxiety, and providers observed that she was tearful during examinations. (AR 21 1210, 1212, 1218.) Providers also noted Plaintiff’s memory was normal, and though her mood and 22 affect were inappropriate, she was oriented as to time, place, person, and situation, and her insight 23 and judgment were normal. (AR 1212, 1218.) 24 At a psychotherapy visit in September 2017, Plaintiff described having a difficult time, 25 particularly when thinking about the way she was treated where she was last employed and the 26 lawsuit she brought against her former employer. (AR 1235.) Plaintiff elaborated that she won the 27 3 At the hearing, Plaintiff moved to amend the alleged onset date to February 3, 2016. (AR 43, 78, 459.) 28 4 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 lawsuit but “such a little amount of money” was “long gone.” (Id.) Although Plaintiff reported no 2 new issues, she stated that “without her meds she is ‘a mess’” and requested a meeting with a 3 psychiatrist. (Id.) 4 By early 2018, counselors noted that Plaintiff had made “‘minimal’” progress, she reported 5 not having taken Adderall for months, and her mental status findings were “routinely 6 unremarkable.” (AR 1357–58.) Plaintiff stated she felt better knowing she was receiving help and 7 felt her doctors were validating her medical issues. (AR 1358–59.) Over the following few months, 8 providers noted that Plaintiff’s major depressive disorder had improved. (AR 1360, 1365, 1368.) 9 Throughout 2018 and 2019, Plaintiff’s depression continued to improve, and she frequently 10 reported good results from her medication regimen and that her mental symptoms did not interfere 11 with her daily functioning. (AR 1368, 1486, 1498, 1502, 1546–47, 1557, 1575, 1868.) For 12 example, during a visit in September 2019 with PMHNP Ann Thomas, Plaintiff stated that she was 13 “‘doing better than [she had] in a long time,’” taking Abilify had helped, and she felt a significant 14 benefit from the overall treatment plan. (AR 1557, 1560.) PMHNP Thomas conducted a mental 15 status examination and made the following findings: Plaintiff’s thought process and progression 16 were normal and without aberration; she exhibited good insight and judgment into and about mental 17 problems; her higher cognitive functioning was generally in the normal range for reasoning; and 18 her evaluation suggested no decline in areas of mental functioning such as attention, concentration, 19 and memory. (AR 1559.) PMHNP Thomas further noted that no changes were needed as to 20 Plaintiff’s medications. (AR 1557, 1560.) At a visit with PMHNP Thomas in December 2019, 21 Plaintiff reported continuing to do well on her medications and no other real concerns. (AR 1575.) 22 PMHNP Thomas’ mental examination at this visit revealed consistent and identical results with the 23 last examination. (AR 1577.) By April 2020, providers noted that Plaintiff had unremarkable 24 mental status findings, her anxiety had improved, she was compliant with appointments and 25 benefitting from medications, doing better, and denied other health concerns. (AR 1929–30, 1942.) 26 On several occasions from 2017 to 2019, Plaintiff’s providers reported that she scored 27 around 45 and 50 in global assessments of functioning (GAF). (See AR 1172, 1233, 1360, 1369, 28 1494.) In April 2020, Dr. Jagdeep Garewal, M.D., determined that Plaintiff’s GAF score was 1 between 61 and 70 and her symptoms were mild. (AR 1831.) 2 2. Opinion Evidence 3 On March 5, 2018, Dr. Gil Schmidt, Psy.D., conducted a consultive mental health 4 evaluation of Plaintiff. (AR 1344.) Plaintiff’s chief complaints were that she “[c]annot work” and 5 “[m]ental health issues.” (Id.) She reported benefits as to her current medication regimen and 6 indicated that the medications she was taking at the time appeared “to be most effective.” (AR 7 1345.) Plaintiff further reported no psychiatric hospitalizations (AR 1345), but she did report a 8 history of drug, alcohol, and tobacco use starting around the age of 20 (AR 1347). 9 As for activities of daily living, Dr. Schmidt noted that Plaintiff appeared capable of 10 preparing and cooking her own meals, caring for her hygiene without prompts or assistance, and 11 doing light and heavy-duty domestic chores without limitations. (AR 1348.) Plaintiff claimed a 12 disturbed sleep pattern of insomnia when she does not take Ambien, but clarified that this disturbed 13 sleep pattern occurs possibly once a year. (Id.) Pursuant to a mental status examination, Dr. 14 Schmidt found that Plaintiff’s long and short-term memory appeared intact, functional, and 15 suggested at least a college level of understanding. (AR 1349.) As for Plaintiff’s judgment and 16 insight, Dr. Schmidt noted that Plaintiff’s responses appeared average, but nevertheless revealed a 17 narcissistic orientation. (Id.) Accordingly, Dr. Schmidt did not render a diagnosis for a primary 18 DSM-5 psychiatric disorder, but rather a secondary diagnosis of unspecified personality features 19 of histrionics and mild to moderate anxiety disorder. (AR 1349–50.) 20 Dr. Schmidt determined that “[Plaintiff’s] functional level appeared to be adequate with no 21 significant mental health impairment,” her “degree of mental health functioning appeared 22 unremarkable at [the] time,” and the nature of her health condition was “stable.” (AR 1350.) Dr. 23 Schmidt did not observe features of ADHD, as Plaintiff had reported, and he observed only mild 24 symptoms that ultimately did not affect Plaintiff’s functionality. (Id.) Dr. Schmidt also found that 25 Plaintiff has no limitations in any of the four areas of mental functioning and determined she was 26 capable of managing her own financial affairs. (AR 1350–51.) Dr. Schmidt concluded that “while 27 [Plaintiff] reports many symptoms, her reporting of symptoms along with her clinical presentation 28 appeared inconsistent.” (AR 1351.) 1 B. Administrative Proceedings 2 The Commissioner denied Plaintiff’s applications for benefits initially on March 27, 2018, 3 and again on reconsideration on June 14, 2018. (AR 42, 124, 141, 161, 179.) Consequently, 4 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 25, 30, 42.) 5 On June 25, 2020, Plaintiff appeared telephonically with counsel and testified before an 6 ALJ as to her alleged disabling conditions. (AR 42, 79–99.) A vocational expert (“VE”) also 7 testified at the hearing. (AR 42, 100–07.) 8 C. The ALJ’s Decision 9 In a decision dated July 23, 2020, the ALJ found that Plaintiff was not disabled, as defined 10 by the Act. (AR 42–59.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 11 §§ 404.1520, 416.920. (Id.) The ALJ decided Plaintiff met the insured status requirements of the 12 Act through December 31, 2020, and she had not engaged in substantial gainful activity since 13 February 3, 2016, the amended alleged onset date (step one). (AR 45.) At step two, the ALJ found 14 Plaintiff’s following impairments to be severe: degenerative disc disease of the lumbar spine, type 15 2 diabetes mellitus with neuropathy, and infections of skin disorder. (Id.) Plaintiff did not have an 16 impairment or combination of impairments that met or medically equaled one of the listed 17 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 49.) 18 The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) and applied the 19 assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three 20 to step four, we assess your [RFC] . . . . We use this [RFC] assessment at both step four and step 21 five when we evaluate your claim at these steps.”). The ALJ determined Plaintiff had the RFC: 22 to perform light work as defined in 20 [§§] CFR 404.1567(b) and 416.967(b) except she can only stand and/or walk for two hours of an eight-hour workday with normal 23 breaks and can sit with normal breaks six hours of an eight-hour workday. She can perform pushing or pulling motions with the upper extremities within the weight 24 restrictions given however, bilateral pushing and pulling with the lower extremities is limited to no repetitive use of foot controls. She should avoid unprotected 25 heights, moving machinery. She can perform postural activities occasionally of climbing ramps and stairs, balancing, crouching, kneeling and crawling. She should 26 not climb ladders, ropes, or scaffolds on the job. She should avoid concentrated exposure to extreme heat and extreme cold. 27 28 1 (AR 50.)5 Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 2 to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not entirely 3 consistent with the medical evidence and other evidence in the record.” (AR 51.) 4 The ALJ found that Plaintiff is capable of performing past relevant work as a substance 5 abuse counselor and sedentary exertion as generally performed, and this work does not require the 6 performance of work-related activities precluded by her RFC (step four). (AR 58.) The ALJ 7 concluded that Plaintiff was not disabled from February 3, 2016, through the date of the decision. 8 (AR 59.) 9 Plaintiff sought review of this decision before the Appeals Council, which denied review 10 on October 19, 2020. (AR 19–24.) Therefore, the ALJ’s decision became the final decision of the 11 Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 12 III. LEGAL STANDARD 13 A. Applicable Law 14 An individual is considered “disabled” for purposes of disability benefits if they are unable 15 “to engage in any substantial gainful activity by reason of any medically determinable physical or 16 mental impairment which can be expected to result in death or which has lasted or can be expected 17 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 18 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 19 impairment or impairments are of such severity that [they are] not only unable to do [their] previous 20 work but cannot, considering [their] age, education, and work experience, engage in any other kind 21 of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 22 “The Social Security Regulations set out a five-step sequential process for determining 23 whether a claimant is disabled within the meaning of the [Act].” Tackett v. Apfel, 180 F.3d 1094, 24 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The Ninth 25 Circuit has provided the following description of the sequential evaluation analysis: 26

27 5 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). Although the weight lifted may be very little, a job is in 28 this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with 1 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 2 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 3 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 4 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable of 5 performing [his or her] past relevant work. If so, the claimant is not disabled. If 6 not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, 7 the claimant is not disabled. If not, the claimant is disabled. 8 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) 9 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found 10 to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 11 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. 12 “The claimant carries the initial burden of proving a disability in steps one through four of 13 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 14 1989)). “However, if a claimant establishes an inability to continue [his or her] past work, the 15 burden shifts to the Commissioner in step five to show that the claimant can perform other 16 substantial gainful work.” Id. (citing Swenson, 876 F.2d at 687). 17 B. Scope of Review 18 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 19 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 20 the record as a whole.” Tackett, 180 F.3d at 1097. “Substantial evidence” means “‘such relevant 21 evidence as a reasonable mind might accept as adequate to support a conclusion.’” Richardson v. 22 Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 23 229 (1938)). “‘Substantial evidence is more than a mere scintilla but less than a preponderance.’” 24 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 25 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 26 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 27 only if that decision is not supported by substantial evidence or it is based upon legal error.” 28 Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “‘[t]he court will uphold the 1 ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.’” Ford 2 v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020); see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 3 (9th Cir. 2001). 4 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 5 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). The Court must 6 instead determine whether the Commissioner applied the proper legal standards and whether 7 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 8 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be 9 affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 10 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 11 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 12 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 13 1993)). 14 Finally, courts may not reverse an ALJ’s decision on account of an error that is harmless. 15 Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). Harmless error “exists when it is clear 16 from the record that the ALJ’s error was inconsequential to the ultimate nondisability 17 determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (internal quotation 18 marks omitted). “[T]he burden of showing that an error is harmful normally falls upon the party 19 attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 20 IV. DISCUSSION 21 Plaintiff contends that the ALJ harmfully erred in finding at step two that her mental 22 impairments were nonsevere, improperly relying on Dr. Schmidt’s opinion as to her mental 23 limitations, and determining that her GAF scores were unpersuasive. (See Doc. 18 at 12–18.) 24 Defendant counters that the ALJ’s step two determination, evaluation of Dr. Schmidt’s opinion, 25 and findings as to Plaintiff’s GAF scores were proper. (See Doc. 20 at 5–14.) The Court disagrees 26 with Plaintiff’s allegations of error. 27 A. Legal Standard 28 “At step two of the five-step sequential inquiry, the Commissioner determines whether the 1 claimant has a medically severe impairment or combination of impairments.” Smolen v. Chater, 2 80 F.3d 1273, 1289–90 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987)). 3 “[A]t the step two inquiry, . . . the ALJ must consider the combined effect of all of the claimant’s 4 impairments on her ability to function, without regard to whether each alone was sufficiently 5 severe.” Smolen, 80 F.3d at 1290 (citing 42 U.S.C. § 423(d)(2)(B) and TITLES II & XVI: THE 6 SEQUENTIAL EVALUATION PROCESS, Social Security Ruling (“SSR”) 86-8 (S.S.A. 1986)). 7 “‘[A]n impairment is not severe if it does not significantly limit [the claimant’s] . . . ability 8 to do basic work activities.’” Smolen, 80 F.3d at 1290 (citing 20 C.F.R. §§ 404.1520(c) & 9 404.1521(a)). “[B]asic work activities are the abilities and aptitudes necessary to do most jobs.” 10 TITLES II & XVI: MED. IMPAIRMENTS THAT ARE NOT SEVERE, SSR 85-28 (S.S.A. 1985). Examples 11 of “basic work activities” include (1) “[p]hysical functions such as walking, standing, sitting, 12 lifting, pushing, pulling, reaching, carrying, or handling;” (2) “[c]apacities for seeing, hearing, and 13 speaking;” (3) “[u]nderstanding, carrying out, and remembering simple instructions;” (4) “[u]se of 14 judgment;” (5) “[r]esponding appropriately to supervision, co-workers and usual work situations;” 15 and (6) “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 416.922(b). 16 “An impairment or combination of impairments can be found ‘not severe’ only if the 17 evidence establishes a slight abnormality that has ‘no more than a minimal effect on an 18 [individual’s] ability to work.’” Smolen, 80 F.3d at 1290 (quoting SSR 85–28). Additionally, “an 19 ALJ may find that a claimant lacks a medically severe impairment or combination of impairments 20 only when his conclusion is ‘clearly established by medical evidence.’” Webb v. Barnhart, 433 21 F.3d 683, 687 (9th Cir. 2005) (citing SSR 85–28); cf. Ukolov v. Barnhart, 420 F.3d 1002, 1006 22 (9th Cir. 2005) (finding that the claimant “failed to meet his burden of establishing disability” 23 where “none of the medical opinions included a finding of impairment, a diagnosis, or objective 24 test results”). 25 “Great care should be exercised in applying the not severe impairment concept.” SSR 85– 26 28. “The Commissioner has stated that ‘[i]f an adjudicator is unable to determine clearly the effect 27 of an impairment or combination of impairments on the individual’s ability to do basic work 28 1 activities, the sequential evaluation should not end with the not severe evaluation step.’” Webb, 2 433 F.3d at 687 (alteration in original) (quoting SSR 85–28). 3 Ultimately, “[t]he severity regulation increases the efficiency and reliability of the 4 evaluation process by identifying at an early stage those claimants whose medical impairments are 5 so slight that it is unlikely they would be found to be disabled even if their age, education, and 6 experience were taken into account.” Yuckert, 482 U.S. at 153. In other words, “the step-two 7 inquiry is a de minimis screening device to dispose of groundless claims.” Smolen, 80 F.3d at 1290 8 (citing Yuckert, 482 U.S. at 153–54). “Nonetheless, ‘[t]he plaintiff has the burden of establishing 9 the severity of the impairment.’” Jennings v. Kijakazi, No. 1:20–cv–01180–SKO, 2022 WL 10 209239, at *8 (E.D. Cal. Jan. 24, 2022); see, e.g., Burch, 400 F.3d at 679 (“The claimant carries 11 the initial burden of proving a disability in steps one through four of the analysis.”) (citing Swenson, 12 876 F.2d at 687). 13 B. The ALJ Did Not Err at Step Two 14 1. Evidence Considered by the ALJ 15 As a part of the step two analysis, the ALJ noted that the record showed diagnoses for 16 depression, anxiety, and ADHD, among other conditions (AR 45), but determined that these mental 17 impairments, considered alone and in combination, “do not cause more than minimal limitation in 18 [Plaintiff’s] ability to perform basic mental work activities and are therefore nonsevere” (AR 46). 19 In evaluating the severity of Plaintiff’s mental impairments based on the record, the ALJ analyzed 20 the impairments under each of the four functional areas that make up what are known as the 21 “paragraph B” criteria and found that Plaintiff had mild limitations in all four areas. (AR 46–48.) 22 For example, the ALJ described how a few months after establishing care at Clinica Sierra 23 Vista and reporting symptoms such as depression and anxiety, as well as appearing tearful during 24 examinations (see AR 1210, 1212, 1218, 1323), by early 2018, counselors noted that Plaintiff had 25 made “‘minimal’” progress, she reported not having to take Adderall for months, and her mental 26 status findings were “routinely unremarkable.” (AR 46; see also AR 1357–58.) Despite not 27 receiving specialty psychiatric care, Plaintiff reported no changes and that depression and anxiety 28 did not interfere with daily functioning. (AR 46, 1229–30, 1358.) Throughout 2018 and 2019, 1 Plaintiff’s depression improved, and she continued to report good results from her medication and 2 that her mental symptoms did not interfere with her daily functioning. (AR 47; see also AR 1368, 3 1486, 1498, 1502, 1546–47, 1557, 1575, 1868.) In April 2020, several providers noted that Plaintiff 4 had unremarkable mental status findings, was compliant with appointments and benefitting from 5 medications, doing better, and denied other health concerns. (AR 47–48, 1929, 1937, 1942.) 6 During a consultive psychological examination, Dr. Schmidt noted that Plaintiff appeared 7 capable of caring for herself, cooking, and an ability to do both light and heavy-duty domestic 8 chores. (AR 47, 1348.) Dr. Schmidt found that many of Plaintiff’s mental faculties were intact, 9 including her long and short-term memory, concentration, and abstract thinking. (AR 48, 1348– 10 49.) Dr. Schmidt opined that Plaintiff’s judgment and insight were also intact, but noted that they 11 were somewhat of a narcissistic orientation. (AR 48, 1349.) Accordingly, Dr. Schmidt did not 12 render a diagnosis for a primary DSM-5 psychiatric disorder, but rather a secondary diagnosis of 13 unspecified personality features of histrionics and mild to moderate anxiety disorder. (AR 48, 14 1349–50.) Dr. Schmidt did not observe features of ADHD, as Plaintiff had reported, and he 15 observed only mild symptoms that did not affect Plaintiff’s functionality. (AR 48, 1350.) Finally, 16 Dr. Schmidt found that Plaintiff had no limitations in any of the four areas of mental functioning 17 and determined she was capable of managing her own financial affairs. (AR 48, 1350–51.) 18 The ALJ also emphasized that the record showed no history of psychiatric hospitalizations. 19 (AR 48.) Lastly, the ALJ noted that the various providers’ opinions rendering Plaintiff’s GAF 20 scores were not persuasive, reasoning that “GAF scores are one-time assessments and speak little 21 to [Plaintiff’s] overall functioning over time,” and “they are vague and provide little insight into 22 [Plaintiff’s] exact limitations.” (AR 58.) 23 2. Reliance on the Opinion of Dr. Schmidt 24 a. Medical Opinion Evidence Generally 25 Plaintiff’s claims for benefits are governed by the agency’s “new” regulations concerning 26 how ALJs must evaluate medical opinions for claims filed on or after March 27, 2017. 20 C.F.R. 27 §§ 404.1520c, 416.920c. The regulations set “supportability” and “consistency” as “the most 28 important factors” when determining the opinions’ persuasiveness. 20 C.F.R. §§ 404.1520c(b)(2), 1 416.920c(b)(2). And although the regulations eliminate the “physician hierarchy,” deference to 2 specific medical opinions, and assigning “weight” to a medical opinion, ALJs must still “articulate 3 how [they] considered the medical opinions” and “how persuasive [they] find all of the medical 4 opinions.” 20 C.F.R. §§ 404.1520c(a)–(b), 416.920c(a)–(b). 5 Recently, the Ninth Circuit issued the following guidance regarding treatment of 6 physicians’ opinions after implementation of the revised regulations: 7 The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians on 8 account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) (“We will not defer or give any specific evidentiary weight, including controlling weight, 9 to any medical opinion(s) . . . , including those from your medical sources.”). Our 10 requirement that ALJs provide “specific and legitimate reasons” for rejecting a treating or examining doctor’s opinion, which stems from the special weight given 11 to such opinions, see Murray, 722 F.2d at 501–02, is likewise incompatible with the revised regulations. Insisting that ALJs provide a more robust explanation when 12 discrediting evidence from certain sources necessarily favors the evidence from 13 those sources—contrary to the revised regulations. 14 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Accordingly, under the new regulations, “an 15 ALJ’s decision, including the decision to discredit any medical opinion, must simply be supported 16 by substantial evidence.” Id. at 787. 17 In conjunction with this requirement, “[t]he agency must ‘articulate . . . how persuasive’ it 18 finds ‘all of the medical opinions’ from each doctor or other source, . . . and ‘explain how [it] 19 considered the supportability and consistency factors’ in reaching these findings.” Woods, 32 F.4th 20 at 792 (citing 20 C.F.R. § 404.1520c(b)); see also id. § 416.920c(b). “Supportability means the 21 extent to which a medical source supports the medical opinion by explaining the ‘relevant . . . 22 objective medical evidence.’” Woods, 32 F.4th at 791–92 (quoting 20 C.F.R. § 404.1520c(c)(1)); 23 see also id. § 416.920c(c)(1). “Consistency means the extent to which a medical opinion is 24 ‘consistent . . . with the evidence from other medical sources and nonmedical sources in the claim.’” 25 Woods, 32 F.4th at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)); see also id. § 416.920c(c)(2). 26 As the Ninth Circuit also observed, 27 The revised regulations recognize that a medical source’s relationship with the claimant is still relevant when assessing the persuasiveness of the source’s opinion. 28 See id. § 404.1520c(c)(3). Thus, an ALJ can still consider the length and purpose 1 examinations that the medical source has performed or ordered from specialists, and 2 whether the medical source has examined the claimant or merely reviewed the claimant’s records. Id. § 404.1520c(c)(3)(i)–(v). However, the ALJ no longer needs 3 to make specific findings regarding these relationship factors[.] 4 Woods, 32 F.4th at 792. “A discussion of relationship factors may be appropriate when ‘two or 5 more medical opinions . . . about the same issue are . . . equally well-supported . . . and consistent 6 with the record . . . but are not exactly the same.’” Id.; see also 20 C.F.R. § 416.920c(b)(3). “In 7 that case, the ALJ ‘will articulate how [the agency] considered the other most persuasive factors.’” 8 Woods, 32 F.4th at 792. Finally, if the medical opinion includes evidence on an issue reserved to 9 the Commissioner, the ALJ need not provide an analysis of the evidence in his decision, even in 10 the discussions required by 20 C.F.R. §§ 404.1520c, 416.920c. See 20 C.F.R. § 404.1520b(c)(3). 11 With these principles in mind, the Court reviews the weight given to Dr. Schmidt’s opinion. 12 b. Analysis 13 The ALJ reiterated that because Plaintiff’s “medically determinable mental impairments 14 cause no more than ‘mild’ limitation in any of the functional areas and the evidence does not 15 otherwise indicate that there is more than a minimal limitation in [Plaintiff’s] ability to do basic 16 work activities, they are nonsevere.” (AR 49 (citing 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1)) 17 (original emphasis); see also AR 48 (ALJ found that the overall record supported her conclusion 18 that Plaintiff had “no more than mild limitations in each of the four areas of mental functioning as 19 described above.”).) Specifically, in weighing Dr. Schmidt’s opinion related to Plaintiff’s mental 20 functioning, the ALJ found that based on the evidence cited above, Dr. Schmidt’s opinion was 21 “persuasive and consistent with the overall record of normal mental status findings and 22 conservative history of treatment.” (AR 48.) 23 The Court finds that the ALJ properly evaluated the supportability and consistency of Dr. 24 Schmidt’s opinion. First, the ALJ invoked the supportability factor by describing how Dr. Schmidt 25 opined that, based on his evaluation of Plaintiff, he did not observe features of ADHD as Plaintiff 26 had described, nor did he render a diagnosis for a primary DSM-5 psychiatric disorder, but instead, 27 a secondary diagnosis of unspecified personality features of histrionics and mild to moderate 28 anxiety disorder. (AR 48, 1349–50.) The ALJ also noted that after finding that most Plaintiff’s 1 mental faculties were intact, Dr. Schmidt observed only mild symptoms that did not affect 2 Plaintiff’s functionality, and he determined that Plaintiff had no limitations in any of the four areas 3 of mental functioning. (AR 48, 1348–51.) Despite finding Dr. Schmidt’s opinion persuasive, the 4 ALJ nonetheless concluded that Plaintiff’s mental limitations as to the four areas of mental 5 functioning were mild. (AR 48.) 6 Second, the ALJ determined that Dr. Schmidt’s opinion was consistent “with the overall 7 record of normal mental status findings and conservative history of treatment.” (AR 48.) As cited 8 by the ALJ and detailed above, on multiple instances ranging from September 2017 to April 2020, 9 providers noted that Plaintiff’s mental status findings were unremarkable. (AR 46–48; see also AR 10 1235, 1357–58, 1929, 1937, 1942.) Over the next two years, Plaintiff repeatedly reported good 11 results from her medications and that her mental symptoms did not interfere with her daily 12 functioning. (AR 47–48; see also AR 1368, 1486, 1498, 1502, 1546–47, 1557, 1575, 1868, 1929, 13 1937, 1942.) And, the record showed no history of psychiatric hospitalizations. (AR 48; see also 14 AR 1345 (Dr. Schmidt noted that no psychiatric hospitalizations were reported).) 15 Based on the foregoing objective medical evidence and opinion evidence, the ALJ’s finding 16 that Dr. Schmidt’s opinion was consistent with the longitudinal record as a whole is legally 17 sufficient and supported by substantial evidence. See, e.g., Deacon v. Kijakazi, No. 1:21-cv-00641- 18 BAM, 2022 WL 17363228, *10–11 (E.D. Cal. Dec. 1, 2022); Sutton v. Kijakazi, No. 1:21-cv- 19 01097-SKO, 2022 WL 4110304, at *9 (E.D. Cal. Sept. 7, 2022). It was therefore reasonable for 20 the ALJ to conclude that the record supported the conclusion that Plaintiff had only mild limitations 21 in all four areas of mental functioning and that her mental impairments, considered alone and in 22 combination, “do not cause more than minimal limitation in [her] ability to perform basic mental 23 work activities and are therefore nonsevere.” (AR 46, 48.) See Batson v. Comm’r Soc. Sec. Admin., 24 359 F.3d 1190, 1198 (9th Cir. 2004) (“When the evidence before the ALJ is subject to more than 25 one rational interpretation, [the Court] must defer to the ALJ’s conclusion.”). 26 3. GAF Scores 27 Plaintiff also contends that the ALJ erred by failing to consider her GAF scores that 28 indicated serious to moderate mental impairments. (See Doc. 18 at 15–18.) As Defendant correctly 1 asserts (see Doc. 20 at 11–13), the ALJ is not required to afford controlling weight to GAF scores. 2 See Nelson v. Comm’r Soc. Sec., No. 1:19-cv-01387-SAB, 2020 WL 5909061, *22 (E.D. Cal. Oct. 3 6, 2020). The Ninth Circuit held in an unpublished opinion that it is not legal error to fail to 4 consider the GAF score where, as here and discussed below, the RFC takes into account the 5 claimant’s mental impairments. See McFarland v. Astrue, 288 Fed. Appx. 357, 359 (9th Cir. 2008). 6 Moreover, the Ninth Circuit recognized that “‘[t]he Commissioner has determined the GAF scale 7 “does not have a direct correlation to the severity requirements in [the Social Security 8 Administration’s] mental disorders listings.”’” Doney v. Astrue, 485 Fed. Appx. 163, 165 (9th Cir. 9 2012) (citing McFarland, 288 Fed. Appx. at 359). Accordingly, the Court concludes that it was 10 not error for the ALJ to find Plaintiff’s GAF scores unpersuasive. 11 C. The ALJ’s Formulation of Plaintiff’s Mental RFC Was Not Erroneous 12 An ALJ must consider the limiting effect of all impairments, including those that are non- 13 severe, in assessing a claimant’s RFC. See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). “However, 14 an ALJ is not required to include limitations in the RFC if the record supports a conclusion that the 15 non-severe impairment does not cause a significant limitation in the claimant’s ability to work.” 16 Kendall v. Saul, No. 1:19-cv-01485-SKO, 2021 WL 736268, at *13 (E.D. Cal. Feb. 25, 2021). “So 17 long as the ALJ ‘actually reviews the record and specifies reasons supported by substantial 18 evidence for not including the non-severe impairment [in the RFC determination], the ALJ has not 19 committed legal error.’” Id. (citing McIntosh v. Berryhill, No. EDCV 17-1654-AGR, 2018 WL 20 3218105, at *4 (C.D. Cal. June 29, 2018) (because the ALJ concluded that mental impairment was 21 nonsevere and caused no more than minimal restrictions, there was no requirement to include it in 22 the claimant’s RFC)). 23 Here, at step two, the ALJ found that Plaintiff’s mental impairments caused no more than 24 mild limitations as to Plaintiff’s mental functioning. (AR 46, 48.) Therefore, in conformity with 25 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1), the ALJ determined that Plaintiff’s mental 26 impairments were nonsevere. (AR 49.) The record also reflects that the ALJ considered all of the 27 evidence related to Plaintiff’s mental impairments at step four before deciding that inclusion of 28 limitations based on those impairments in the RFC was not warranted. In particular, the ALJ 1 considered the medical opinion evidence, objective medical evidence in the record, and Plaintiff’s 2 reports as to her limitations due to her mental health issues, such as her inability to work and 3 ongoing difficulties with remembering and concentrating. (AR 50–51.) The ALJ thus did not err 4 in omitting mental limitations in Plaintiff’s RFC. 5 D. Even Assuming Arguendo the ALJ Did Err, Such Error was Harmless 6 Even had the ALJ erred by failing to conclude that Plaintiff had severe mental impairments, 7 such error was, at most, harmless. (See Doc. 20 at 6.) A claimant is prejudiced at step two by an 8 ALJ’s omission of an impairment only where that step is not resolved in the claimant’s favor. See, 9 e.g., Burch, 400 F.3d at 682 (“Here, the ALJ did not find that Burch’s obesity was a ‘severe’ 10 impairment . . . . Assuming without deciding that this omission constituted legal error, it could only 11 have prejudiced Burch in step three (listing impairment determination) or step five (RFC) because 12 the other steps, including this one, were resolved in her favor.”); Hickman v. Comm’r Soc. Sec. 13 Admin., 399 Fed. Appx. 300, 302 (9th Cir. 2010) (“Any error in the ALJ’s failure to include a 14 reading disorder as one of Hickman’s severe impairments at step two of the analysis is harmless. 15 The ALJ found Hickman suffered from other severe impairments and, thus, step two was already 16 resolved in Hickman’s favor.”). Additionally, the failure to include an impairment in the step two 17 analysis is harmless if the ALJ considers the functional limitations that flow from said impairment 18 in subsequent steps. See Lewis, 498 F.3d at 911 (holding that ALJ’s failure to list plaintiff’s bursitis 19 as a severe impairment at step two was harmless where ALJ considered limitations caused by the 20 condition at step four). 21 At step two, the ALJ determined that Plaintiff’s severe impairments included degenerative 22 disc disease of the lumbar spine, type 2 diabetes mellitus with neuropathy, and infections of skin 23 disorder. (AR 45.) The ALJ then proceeded to the step three analysis. (See AR 49.) Therefore, 24 because Plaintiff’s claims were not screened out at this step, she was not prejudiced by any error 25 in the step two analysis. See Wilson v. Kijakazi, No. 1:20-cv-01753-SKO, 2022 WL 3908428, at 26 *12 (E.D. Cal. Aug. 30, 2022). The ALJ further stated in RFC findings that she “considered all 27 symptoms and the extent to which these symptoms can reasonably be accepted as consistent with 28 the objective medical evidence and other evidence . . . .” (AR 50; see, e.g., Sara Ann W. v. Comm’r 1 of Soc. Sec., No. 2:17-CV-00277-RHW, 2018 WL 4088771, at *4 (E.D. Wash. Aug. 27, 2018) 2 (“the ALJ specifically noted that she considered all symptoms in assessing the [RFC] . . . 3 Accordingly, the Court finds the ALJ did not err in the step two analysis, and if any error did occur 4 it was harmless.”) (original italics).) 5 In sum, the Court concludes that the ALJ properly weighed the medical evidence and did 6 not harmfully err in her assessment of Plaintiff’s RFC. See Wilson, 2022 WL 3908428, at *2; 7 Kendall, 2021 WL 736268, at *13–14. 8 V. CONCLUSION AND ORDER 9 After consideration of Plaintiff’s and the Commissioner’s briefs and a thorough review of 10 the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 11 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 12 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, and against Plaintiff. 13 IT IS SO ORDERED. 14

15 Dated: January 20, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 16

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