1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARY ANN YANG, Case No. 1:21-cv-00608-CDB (SS)
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S 14 COMMISSIONER OF SOCIAL CROSS-MOTION FOR SUMMARY SECURITY,1 JUDGMENT 15 Defendant. (Docs. 22, 23) 16 17 18 Plaintiff Mary Ann Yang (“Plaintiff”) seeks judicial review of a final decision of the 19 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 20 disability benefits under the Social Security Act. (Doc. 1). The matter is currently before the Court 21 on the Administrative Record (“AR”) and the parties’ briefs, which were submitted without oral 22 argument. (Docs. 12, 22, 23).2 The Court finds and rules as follows. 23
24 1 On February 19, 2025, Lee Dudek was named Acting Commissioner of the Social Security Administration. See https://www.ssa.gov/news/press/releases/2025/#2025-02-19 (last visited May 25 7, 2025). He therefore is 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 26 Office of the Commissioner shall, in [their] official capacity, be the proper defendant.”). 27 2 On March 7, 2022, after both parties consented to the jurisdiction of a magistrate judge for all further proceedings in this action, including trial and entry of judgment, the matter was 1 I. BACKGROUND
2 A. Administrative Proceedings and ALJ’s Decision
3 On May 9, 2018, Plaintiff applied for Supplemental Security Income (SSI) with an alleged
4 onset date of October 13, 2015. (Doc. 22 at 2); (Doc. 23 at 2); (AR 222-31). Plaintiff’s claim was
5 initially denied o`n July 11, 2018, and again upon reconsideration on August 31, 2018. (AR 19-32, 6 38-57, 72-101, 104-08, 112-16, 118-33). Plaintiff requested a hearing before an Administrative 7 Law Judge on September 8, 2018. (AR 118). Debra Denney, the Administrative Law Judge 8 (“ALJ”), held a telephone hearing on April 28, 2020, where testimony was offered by Plaintiff with 9 the assistance of a Hmong interpreter and by impartial vocational expert Ashley Bryars. (AR 19, 10 38-57). The ALJ issued an unfavorable decision on June 3, 2020, finding Plaintiff was not disabled. 11 (AR 16, 19). The Appeals Council denied Plaintiff’s request for review on September 14, 2020, 12 rendering the ALJ’s decision as the final decision of the Commissioner. (AR 5-10, 219-20). 13 Plaintiff subsequently filed this action seeking judicial review of the ALJ’s decision. (Doc. 1). 14 In the decision, the ALJ considered Plaintiff’s claims using the five-step sequential 15 evaluation required by 20 C.F.R. § 416.920(a). (AR 20-21). At step one, the ALJ found that 16 Plaintiff had not engaged in substantial gainful activity since May 9, 2018, the application date. 17 (AR 21). 18 At step two, the ALJ found that Plaintiff has the following severe impairments: depression, 19 anxiety, and a schizoaffective disorder, depressive type. (Id.). The ALJ determined that Plaintiff’s 20 medically determinable impairments (“MDIs”) significantly limit her ability to perform basic work 21 activities as required by Social Security Ruling (“SSR”) 85-28. (Id.). Further, the ALJ determined 22 that because there is no evidence that Plaintiff’s diagnosis with diabetes significantly limits her 23 ability to perform basic work activities, her diabetes is not a severe impairment. The ALJ noted 24 that: a physical exam showed no abnormalities and Plaintiff’s treating physician stated that Plaintiff 25 was likely noncompliant with her insulin regimen; Plaintiff took Metformin in addition to insulin; 26 by September 27, 2018, her A1C and blood sugar readings were trending down and she had a 27 normal neurological exam; she had no skin lesions and she denied having symptoms of numbness, 1 her treating physician stated that she was doing excellent with a fasting blood sugar of 82 and
2 insulin decreased to 35 units; Plaintiff admitted to not complying with medication or diet when her
3 blood sugar increased to 249 on March 21, 2019; her AIC was down from 12.5 in January to 10.0
4 on March 5, 2020; her daughters were managing her blood sugar and medications; and a
5 neurological exa`m showed grossly intact sensation in all extremities. (AR 21-22) (citing B-10F, 6 B11F). The ALJ separately determined that Plaintiff’s hypertension and morbid obesity are non- 7 severe impairments. (AR 22) (citing Ex. B-11F). As to obesity, the ALJ noted that Plaintiff 8 weighed 280 pounds at a height of 59 inches with a BMI of 56.55 on March 5, 2020, and that no 9 treating or examining physician has given her any restrictions based on obesity. (Id.). 10 At step three, the ALJ found that Plaintiff did not have an impairment, or any combination 11 of impairments, that meets or medically equals the severity of one of the listed impairments in 20 12 C.F.R. Part 404, Subpart P, Appendix 1. (AR 22). In making this finding, the ALJ considered 13 whether the four broad functional areas of mental functioning listed in the “paragraph B” criteria 14 are satisfied.3 As to understanding, remembering or applying information, the ALJ found that 15 Plaintiff has a moderate limitation, noting that: Dr. Izzi, the consultative psychological examiner, 16 and both of the DDS psychological consultants identified moderate limitations in this domain; that 17 these ratings are supported by progress notes from Plaintiff’s treating psychiatrist showing linear, 18 organized and goal-directed thought processes despite simplistic and concrete thinking; and that 19
20 3 The “paragraph B” criteria evaluate mental impairments in the context of four broad areas of functioning: (1) understanding, remembering, or applying information; (2) interacting with 21 others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. 20 C.F.R. § Pt. 404, Subpt. P, App. 1. The severity of the limitation a claimant has in each of the 22 four areas of functioning is identified as either “no limitation,” “mild,” “moderate,” “marked,” or “extreme.” (Id.). To satisfy the paragraph B criteria, a claimant must have an “extreme” limitation 23 in at least one of the areas of mental functioning, or a “marked” limitation in at least two of the 24 areas of mental functioning. (Id.). An “extreme” limitation is the inability to function independently, appropriately, or effectively, and on a sustained basis. (Id.). A “marked” limitation 25 is a seriously limited ability to function independently, appropriately, or effectively, and on a sustained basis. (Id.). A “moderate” degree of mental limitation means that functioning in this area 26 independently, appropriately, effectively, and on a sustained basis is “fair.” (Id.) And a “mild” degree of mental limitation means that functioning in this area independently, appropriately, 27 effectively, and on a sustained basis is “slightly limited.” (Id.); see Carlos v. Comm’r of Soc. Sec., No. 1:21-cv-00517-SAB, 2023 WL 1868870, at *4 n.7 (E.D. Cal. Feb. 9, 2023). 1 Plaintiff did unskilled work successfully for a year in 2013. (AR 22) (citing Ex. B). As to
2 interacting with others, the ALJ found that Plaintiff has a mild limitation. As to concentrating,
3 persisting or maintaining pace, the ALJ found that Plaintiff has a moderate limitation. As to
4 adapting or managing oneself, the ALJ found that Plaintiff has a moderate limitation. Because
5 these mental im`p airments do not cause at least two “marked” limitations or one “extreme” 6 limitation, the ALJ determined that the “paragraph B” criteria are not satisfied. (AR 23). The ALJ 7 found that the “paragraph C” criteria4 were not met because there is no evidence of marginal 8 adjustment of minimal capacity to adapt to changes in the environment or to demands that are not 9 already part of Plaintiff’s daily life. (Id.). 10 Prior to step four, the ALJ found that Plaintiff has the RFC to perform work at all exertional 11 levels as defined in 20 C.F.R. 416.967(b) except that Plaintiff: 12 can do simple, routine and repetitive work; understand, carry out and remember simple instructions, terms and procedures; is able to maintain work activity for 13 approximately a two-hour time period; can correct mistakes and work at a 14 reasonable pace with normally given work breaks in a typical work day; can sustain a routine schedule; can make simple judgments on work related decisions; is able 15 to ask questions; accept constructive criticism; tolerate occasional interaction with coworkers; and complete her work activities without distracting others or otherwise 16 disturbing the work environment. 17 (AR 23). In considering Plaintiff’s symptoms and the extent to which these symptoms can 18 reasonably be accepted as consistent with objective medical evidence and other evidence, the ALJ 19 noted she followed the two-step process as set forth in the 20 C.F.R. 416.929 and SSR 16-3p and 20 considered the medical opinion(s) and prior administrative medical finding(s) in accordance with 21 20 C.F.R. 416.920c (discussed infra, pp. 16-18). In this regard, the ALJ noted inconsistencies and 22 concerns in Plaintiff’s psychiatric consultative exam records and found that Plaintiff’s statements 23 therein “are inconsistent with her alleged mental health symptoms and limitations.” (AR 24-25) 24 (citing Ex. B-3F, B-7F, B-9F). The ALJ noted that Plaintiff’s statements “suggest motives of 25
26 4 “Paragraph C,” subsection (1) requires a “highly structured setting that is ongoing that diminishes the signs and symptoms of [Plaintiff’s] mental disorder.” 20 C.F.R. § Pt. 404, Subpt. 27 P, App. 1 § 12.04(C)(1). “Paragraph C,” subsection (2) requires that Plaintiff “have minimal capacity to adapt to changes in [Plaintiff’s] environment or to demands that are not already part of 1 secondary gain in [her] complaints of depression” and that her statements to evaluating psychiatrist
2 Dr. Chofla regarding the duration of her symptoms as “less than one hour and that her triggers were
3 less frequent” and that she had improvements with medication are “inconsistent with her allegation
4 of ongoing symptoms such as hearing voices.” (AR 25) (citing Ex. B-7F). The ALJ noted
5 inconsistencies `i n Plaintiff’s allegations with regard to the observations of consultative 6 psychological examiner Roger Izzi, Ph.D., including his observations “that he did not observe any 7 auditory or visual hallucinations” although Plaintiff “alleged hearing voices” and that Plaintiff 8 spoke English in her exam with Dr. Izzi “in contrast to [her] prior representation that she did not 9 speak English[.]” (Id.) (citing Ex. B-7F, B-8F, B-5A). The ALJ further noted that Plaintiff’s 10 statement that “she had applied for work but was not hired” and that “she considers herself capable 11 of performing work activity is also inconsistent with her allegations of disabling symptoms.” (Id.) 12 (citing Ex. B-7F). 13 The ALJ summarized third-party statement reports from Plaintiff’s family members 14 including from her daughter, mother, and two of her sisters. (AR 25-26) (citing Ex. B-16E-18E & 15 20E). The ALJ found the third-party statements were not persuasive as they are inconsistent with 16 the objective medical evidence including as to Plaintiff’s comprehension of the value of money, 17 prior work history, ability to groom and care for herself independently, medication use, and 18 physical and mental limitations. (Id.). The ALJ found that “there is no evidence of psychosis in 19 the record” despite Plaintiff’s allegations that she hears voices, her exam records “have been 20 normal[,]” she “has never been diagnosed [with] a psychotic disorder[,]” and all family members 21 have stated that “she has improved with prescribed medications.” (AR 26). The ALJ also found 22 the third-party function report of Plaintiff’s sister, Pa Foua Yang, inconsistent as the limitations 23 described therein conflicted with the observations of Plaintiff’s treating psychiatrist and of 24 Plaintiff’s statements. (AR 26-27) (citing Ex. B-3F, B-3E). The ALJ found that Plaintiff’s 25 statements and activities “indicate the capacity to understand, remember and carry out at least 26 simple instructions[.]” (AR 26-27) (citing Ex. B-3F, B-3E). 27 The ALJ summarized the objective medical evidence and found it “supports a conclusion 1 prior administrative medical findings. (AR 28). The ALJ found that Dr. Chofla’s lack of
2 restrictions in his June 12, 2019, formal psychiatric assessment “persuasive in view of her normal
3 mental status findings before, on and after that date.” (Id.). The ALJ found unpersuasive the
4 observations of Sai Vang, a registered associate marriage and family therapist, including Vang’s
5 diagnosis of Plai`n tiff with schizoaffective disorder, as Dr. Chofla, Plaintiff’s treating psychiatrist, 6 “has never made this diagnosis” and he noted on August 14, 2019, that Plaintiff “did not, in fact, 7 have a true psychosis[.]” (Id.) (citing Ex. B-7F, B-9F). 8 The ALJ found persuasive the opinion, diagnosis, and RFC assessment of psychological 9 consultative examiner Dr. Izzi as the opinion is “well supported by his objective medical signs and 10 findings and consistent with the observations and findings of Dr. Chofla.” (AR 28). The ALJ noted 11 from Dr. Izzi’s findings: 12 [Plaintiff] stated that she completed the 11th grade and spoke English during the exam. Dr. Izzi administered the [Wechsler Adult Intelligence Scale-IV] (WAIS- 13 IV), on which [Plaintiff] attained a full scale IQ of 48, in the extremely low range and at the 1st percentile. However, [Dr. Izzi] stated that the test results did not 14 appear consistent with her report of activities of daily living, her history of work activity and the fact that she had raised four children. The Visual Memory Index 15 of the WMS-IV was administered and [Plaintiff] scored at the 0.1 percentile, 16 suggesting deficits in visual memory. Although Dr. Izzi did not comment on this test result, he did not note any objective clinical observations or mental status 17 findings that would corroborate such a low score, such as an inability to copy shapes or pictures. Dr. Izzi noted that there were no medical records available for review 18 that would support her subjective complaints and diagnosed a persistent depressive disorder with anxious distress. He concluded that she would have moderate limits 19 in the ability to understand, remember and carry out both short and simple and 20 detailed and complex instructions and in the ability to interact appropriately with the public, supervisors and coworkers and to respond appropriately to usual work 21 stress. 22 (AR 28) (citing Ex. B-8F). The ALJ then noted inconsistencies of Plaintiff’s statements to the notes 23 of Dr. Chofla: 24 Dr. Chofla’s notes do not substantiate the claimant’s extremely low full scale IQ on 25 the WAIS-IV, as she has consistently shown normal thought processes during Dr. Chofla’s exam. Her statements to Dr. Chofla regarding learning to drive and stating 26 that she was limited in this pursuit only by her inability to read Hmong or English also appears inconsistent with such a low IQ as they indicate normal functioning 27 and a consciousness of a deficit that interferes with her goal of driving. 1 The ALJ found persuasive the opinions of the DDS MDs who previously evaluated the case
2 as consistent with the medical evidence, noting that on July 6, 2018, the DDS MD at the initial
3 level found Plaintiff did not have a severe physical impairment and on August 31, 2018, the DDS
4 MD on reconsideration also found her obesity and diabetes non-severe. (AR 29) (citing Ex. B-3A,
5 Ex. B-5A). The `A LJ therefore adopted the physical RFC from the prior ALJ decision. (Id.). The 6 ALJ also found persuasive the opinions of two DDS psychological consultants “as they are well 7 supported by the medical and other evidence in the file” and “are consistent with the observations 8 of Dr. Izzi[] and support his decision not to find more than moderate limitations in the ability to 9 understand, remember and carry out instructions based on [Plaintiff’s full scale IQ score on the 10 WAIS-IV.” (Id.). The ALJ further noted that these DDS opinions “are consistent with the record 11 as a whole, which show daily activities, work history, personal history including raising four 12 children and statements to her treating psychiatrist that are consistent with simple, routine, 13 repetitive work” and “there is no evidence of more than moderate limitations in social functioning.” 14 (Id.). The ALJ therefore found that Plaintiff “should be able to tolerate occasional interaction with 15 coworkers, ask questions, accept constructive criticism and complete her work without distracting 16 others or disturbing the work environment.” (AR 30). 17 As to Plaintiff’s obesity, the ALJ found that there “is no medical opinion which specifies 18 any impact of [her] obesity on the other impairments” and noted that “[h]owever, given the level 19 of [her] obesity,” the ALJ found “that the obesity reasonably has some impact on functioning, but 20 not beyond the [RFC]” as assessed. (Id.). 21 The ALJ concluded that Plaintiff’s assessed RFC “is supported by the opinion[s] of her 22 treating psychiatrist, … psychological consultative examiner, …the DDS psychiatrist and 23 psychologist, her daily activities[,]” her own statements, and the statements of “her family members 24 that her psychiatric symptoms are well controlled with medication” and she therefore “retains the 25 ability to perform a wide range of work at all exertional levels” as described in the RFC. (AR 30). 26 At step four, the ALJ determined that Plaintiff is unable to perform any past relevant work. 27 (Id.). The ALJ found that Plaintiff is a younger individual on the date the application was filed 1 English. (AR 30-31). The ALJ found that transferability of job skills is not an issue here because
2 Plaintiff’s past relevant work as a poultry eviscerator is unskilled. (AR 31).
3 At step five, the ALJ found that there are jobs that exist in significant numbers in the
4 national economy that Plaintiff could perform. (Id.). The ALJ cited to housekeeping cleaner,
5 domestic laundry` worker, and merchandise marker, based on testimony of the vocational expert. 6 (Id.). The ALJ found that restrictions proposed by Plaintiff’s attorney at the hearing “are not 7 supported by the record as a whole” and therefore concluded a finding of “not disabled” was 8 appropriate. (AR 32). 9 After the Appeals Council denied review, Plaintiff initiated this action and ultimately filed 10 the instant motion for summary judgment on August 10, 2022. (Doc. 22). Defendant filed a cross- 11 motion for summary judgment and opposition on September 26, 2022. (Doc. 23). 12 B. Medical Record and Hearing Testimony 13 The relevant hearing testimony and medical record were reviewed by the Court and will be 14 referenced below as necessary to this Court’s decision. 15 II. LEGAL STANDARD 16 A district court’s review of a final decision of the Commissioner of Social Security is 17 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 18 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or is 19 based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” 20 means “relevant evidence that a reasonable mind might accept as adequate to support a 21 conclusion.” (Id. at 1159) (quotation and citation omitted). Stated differently, substantial evidence 22 equates to “more than a mere scintilla[,] but less than a preponderance.” (Id.) (quotation and 23 citation omitted). “[I]t is such relevant evidence as a reasonable mind might accept as adequate to 24 support a conclusion.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (quotation and 25 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 26 consider the entire record as a whole rather than searching for supporting evidence in 27 isolation. (Id.). 1 and may not affirm the ALJ on a ground upon which she did not rely. Social Security Act § 205,
2 42 U.S.C. § 405(g). In reviewing a denial of benefits, a district court may not substitute its
3 judgment for that of the Commissioner. “The court will uphold the ALJ’s conclusion when the
4 evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d
5 1035, 1038 (9th `C ir. 2008). Further, a district court will not reverse an ALJ’s decision on account 6 of an error that is harmless. (Id.). An error is harmless where it is “inconsequential to the [ALJ’s] 7 ultimate nondisability determination.” (Id). (quotation and citation omitted). The party appealing 8 the ALJ’s decision generally bears the burden of establishing that it was harmed. Shinseki v. 9 Sanders, 556 U.S. 396, 409-10 (2009). 10 A claimant must satisfy two conditions to be considered “disabled” and eligible for benefits 11 within the meaning of the Social Security Act. First, the claimant must be “unable to engage in any 12 substantial gainful activity by reason of any medically determinable physical or mental impairment 13 which can be expected to result in death or which has lasted or can be expected to last for a 14 continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the 15 claimant’s impairment must be “of such severity that he is not only unable to do his previous 16 work[,] but cannot, considering his age, education, and work experience, engage in any other kind 17 of substantial gainful work which exists in the national economy.” 42 U.S.C. § 18 1382c(a)(3)(B). 19 The Commissioner has established a five-step sequential analysis to determine whether a 20 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 21 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant 22 is engaged in “substantial gainful activity,” the Commissioner must find that the claimant is not 23 disabled. 20 C.F.R. § 416.920(b). 24 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 25 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 C.F.R. 26 § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of impairments 27 which significantly limits [his or her] physical or mental ability to do basic work activities,” the 1 satisfy this severity threshold, however, the Commissioner must find that the claimant is not
2 disabled. (Id.).
3 At step three, the Commissioner compares the claimant’s impairment to impairments
4 recognized by the Commissioner to be so severe as to preclude a person from engaging in
5 substantial gainf`u l activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as severe or more 6 severe than one of the enumerated impairments, the Commissioner must find the claimant disabled 7 and award benefits. 20 C.F.R. § 416.920(d). 8 If the severity of the claimant’s impairment does not meet or exceed the severity of the 9 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 10 functional capacity,” defined generally as the claimant’s ability to perform physical and mental 11 work activities on a sustained basis despite his or her limitations (20 C.F.R. § 416.945(a)(1)). 12 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 13 claimant is capable of performing work that he or she has performed in the past (past relevant 14 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, 15 the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If the 16 claimant is incapable of performing such work, the analysis proceeds to step five. 17 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 18 claimant is capable of performing other work in the national economy. 20 C.F.R. § 19 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational 20 factors such as the claimant’s age, education, and past work experience. (Id.). If the claimant is 21 capable of adjusting to other work, the Commissioner must find that the claimant is not disabled. 20 22 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to other work, the analysis 23 concludes with a finding that the claimant is disabled and is therefore entitled to benefits. (Id.). 24 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 25 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 26 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 27 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 1 III. ISSUES AND ANALYSIS
2 Plaintiff seeks judicial review of the Commissioner’s final decision denying her application
3 and raises the following issues:
4 1. The ALJ’s RFC assessment failed to include all the limitations and restrictions
5 suppo` rted by substantial evidence in the record; and 6 2. The ALJ erred in finding that Plaintiff’s obesity and diabetes were non-severe 7 impairments at Step Two and the resultant RFC fails to include limitations related to 8 those impairments. 9 See (Doc. 22 at 2). The Court addresses the issues in turn below. 10 A. Whether the ALJ’s RFC Assessment Failed to Include All Limitations and 11 Restrictions Supported by Substantial Evidence in the Record 12 1. Governing Authority 13 A claimant’s RFC is “the most [the claimant] can still do despite [his or her] limitations.” 14 20 C.F.R. §§ 404.1545(a), 416.945(a). The RFC assessment is an administrative finding based on 15 all relevant evidence in the record, not just medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 16 1217 (9th Cir. 2005). In determining the RFC, the ALJ must consider all limitations, severe and 17 non-severe, that are credible and supported by substantial evidence in the record. (Id.). However, 18 an ALJ’s RFC findings need only be consistent with relevant assessed limitations and not identical 19 to them. See Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010) (“Although 20 the ALJ rejected any implication in Dr. Koogler’s evaluation that Turner was disabled, he did 21 incorporate Dr. Koogler’s observations into his residual functional capacity determination. … 22 These limitations were entirely consistent with Dr. Koogler’s limitation.”). Ultimately, a claimant’s 23 RFC is a matter for the ALJ to determine. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). 24 Substantial evidence supports an ALJ’s finding that a claimant’s mental impairments are 25 non-severe if (1) she properly considered the claimant’s mental health records, (2) she properly 26 considered the Paragraph B criteria (see supra p. 4, n.3), and (3) the record supports her findings 27 regarding the non-severity. See Woods v. Kijakazi, 32 F.4th 785, 794 (9th Cir. 2022). 1 following five-point scale: None, mild, moderate, marked, and extreme.” 20 C.F.R. §§
2 404.1520a(c)(4), 416.920a(c)(4). If the ALJ rates the claimant’s limitations as “none” or “mild” in
3 each of the four areas, the ALJ “will generally conclude that [the claimant’s] impairment(s) is not
4 severe, unless the evidence otherwise indicates that there is more than a minimal limitation in [the
5 claimant’s] abili`t y to do basic work activities.” 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). 6 Legal error occurs when an ALJ neglects to document her application of the paragraph B criteria 7 or fails to include a specific finding as to the degree of limitation in any of the four functional areas. 8 Lee v. Kijakazi, No. 3:20-cv-01596-H-BGS, 2022 WL 913057, at *4 (S.D. Cal. Mar. 29, 2022) 9 (citing Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 726 (9th Cir. 2011)). 10 2. Parties’ Contentions 11 Plaintiff contends that the ALJ failed to account for all the functional limitations of Dr. Izzi 12 despite finding the opinion persuasive. (Doc. 22 at 9-10). Plaintiff argues that the ALJ’s failure to 13 include Dr. Izzi’s assessed functional moderate limitations—in understanding, remembering, and 14 carrying out short and simple instructions, interacting appropriately with coworkers and 15 supervisors, and responding appropriately to usual work stress—in the RFC and hypothetical 16 question to the VE is error, and therefore the resultant RFC and subsequent vocational testimony 17 finding that Plaintiff could perform her past work and other work in the national economy is not 18 supported by substantial evidence. (Id. at 10). 19 Defendant contends the ALJ properly assessed Plaintiff’s RFC and accounted for 20 limitations with adequate support in the record. (Doc. 23 at 4). Defendant argues that “moderate 21 mental limitations are not disabling and need not be included in an RFC” and the ALJ did not err 22 in failing to incorporate such limitations in the RFC. (Id.). Defendant contends that the RFC 23 properly accounted for Plaintiff’s mental impairments in each of the four functional areas, the 24 medical opinions of record, and the prior administrative medical findings that had sufficient support 25 in the record. (Id. at 4-5). Defendant argues Plaintiff fails to identify any actual conflict between 26 Dr. Izzi’s opinion and the RFC finding and therefore has established no reversible error from the 27 ALJ’s consideration of the medical opinion evidence. (Id. at 11). 1 3. Analysis
2 As set forth supra, the ALJ determined Plaintiff’s RFC as follows:
3 [Plaintiff] has the [RFC] to perform work at all exertional levels as defined in 20
4 CFR 416.967(b) except that she can do simple, routine and repetitive work[;] understand, carry out and remember simple instructions, terms and procedures[;] is 5 able to m` aintain work activity for approximately a [two]-hour time period[;] can correct mistakes and work at a reasonable pace with the normally given work breaks 6 in a typical work day[;] can sustain a routine schedule[;] can make simple judgments on work related decisions[;] is able to ask questions[;] accept 7 constructive criticism[;] tolerate occasional interaction with coworkers[;] and 8 complete her work activities without distracting others or otherwise disturbing the work environment. 9 10 (AR 23). Dr. Izzi assessed the following functional assessment:
11 Full Scale IQ of 48 would not be consistent with [Plaintiff’s] reported occupational 12 history, as well as her activities of daily living. There were no medical records available for review. There were no objective medical records available for review 13 that would support her subjective complaints. Clinical interview finds [Plaintiff] denying any history of drug usage. She did not attempt to describe auditory 14 hallucinations. She stated that she is presently being treated by mental health professionals. She presents with a complex medical history, which would be best 15 addressed by the appropriate medical specialist. 16 17 (AR 536). Dr. Izzi opined that Plaintiff “would have moderate limits in the ability to understand, 18 remember and carry out both short and simple and detailed and complex instructions and in the 19 ability to interact appropriately with the public, supervisors and coworkers and to respond 20 appropriately to usual work stress.” (AR 28, 538). He noted that “there were no medical records 21 available for review that would support [Plaintiff’s] subjective complaints and [he] diagnosed [her 22 with] a persistent depressive disorder with anxious distress[.]” (Id.). Dr. Izzi found that despite 23 Plaintiff scoring “in the extremely low range” following an administration of the WAIS-IV, he 24 found the test results “did not appear consistent with her report of activities of daily living, her 25 history of work activity, and the fact that she raised four children[.]” (Id.). The ALJ noted that Dr. 26 Izzi “did not note any objective clinical observations or mental status findings that would 27 corroborate such a low score, such as an inability to copy shapes or pictures.” (Id.). The ALJ found Dr. Izzi’s opinion was “well supported by his objective medical signs and findings and consistent 1 with the observations and medical findings of Dr. Chofla” as Dr. Izzi “did not observe any clinical
2 symptoms of extremely low IQ during his exam” and Dr. Chofla’s notes likewise reflect Plaintiff
3 “has consistently shown normal thought processes” during examination. (Id.). The ALJ therefore
4 found Dr. Izzi’s diagnosis and RFC assessment to be persuasive. (AR 29).
5 Here, the` A LJ assessed in the RFC that Plaintiff “could understand, carry out and remember 6 simple instructions, terms and procedures” after finding persuasive the opinion of Dr. Izzi who 7 found Plaintiff was moderately limited in such capacity. “[A]n ALJ’s RFC findings need only be 8 consistent with relevant assessed limitations and not identical to them.” Turner, 613 F.3d at 1222- 9 23; Mendoza v. Kijakazi, Case No. 1:19-cv-1371-HBK, 2022 WL 715096, at *6 (E.D. Cal. Mar. 10 10, 2022) (“When the ALJ credits the functional limitations of a medical source, the RFC need not 11 expressly incorporate each of those limitations if the RFC embraces and accounts for limitations, 12 so long as it [is] not inconsistent with the medical opinion.”). “However, it is error for an ALJ to 13 simultaneously claim to incorporate a medical opinion and yet, without explanation, omit 14 relevant limitations set forth in that medical opinion.” Morgan F. v. Dudek, No. 4:24-CV-05104- 15 EFS, 2025 WL 621434, at *3 (E.D. Wash. Feb. 26, 2025) (citing SSR 96-8p, 1996 WL 374184 at 16 *7 (July 2, 1996)). 17 The ALJ’s inclusion in the RFC of a limitation that Plaintiff could understand, carry out and 18 remember only “simple” instructions, terms and procedures, is not inconsistent with Dr. Izzi’s 19 assessment the Plaintiff had “moderate limits” in the ability to understand, remember and carry out 20 simple instructions. See Strother v. Comm’r of Soc. Sec., No. CIV S–08–0482–CMK, 2009 WL 21 3157472, at *7 (E.D. Cal. Sept. 28, 2009) (finding that ALJ did not error in declining to include a 22 doctor’s assessed “moderate” limitation in RFC assessing plaintiff was capable of work involving 23 simple tasks; “the ALJ was not required to recite each and every non-significant limitation which 24 formed the basis of that ultimate opinion”) (citing cases). That is because a “moderate limitation 25 means that an individual is still able to function satisfactorily in the area of the limitation.” Stenson 26 v. Astrue, No. 11CV1054–BEN (BLM), 2012 WL 115440, at *8 (S.D. Cal. Mar. 15, 2012). Accord 27 Fergerson v. Berryhill, No. 5:17-cv-00161-KES, 2017 WL 5054690, at *5 (C.D. Cal. Nov. 1, 1 opinion evidence that the claimant had a ‘moderate’ limitation in concentration and attention.”).
2 The Court similarly finds the ALJ’s RFC adequately limits Plaintiff’s ability to interact with others
3 in providing that Plaintiff can “tolerate occasional interaction with coworkers.” (AR 23).
4 Any error by the ALJ in declining or neglecting to present to the vocational expert
5 hypothetical que`s tions involving limitations of moderate scope would not warrant remand because 6 such errors would be harmless, particularly given that other evidence relied upon by the ALJ (such 7 as the opinion of Dr. Garland, see AR 97) corroborated that Plaintiff retained the ability to 8 understand and remember simple instructions. See, e.g., Stenson, 2012 WL 115440, at *8 (“Given 9 the fact that Plaintiff can still respond appropriately to changes in the work setting at a satisfactory 10 level, omitting [the ‘moderate’] limitation from the hypothetical presented to the VE was 11 inconsequential to the ALJ’s ultimate nondisability determination.”). 12 B. Whether the ALJ Erred in Finding that Plaintiff’s Obesity and Diabetes Were 13 Non-Severe Impairments at Step Two and the Resultant RFC Fails to Include 14 Limitations Related to Those Impairments 15 1. Governing Authority 16 “In step two of the disability determination, an ALJ must determine whether the claimant 17 has a medically severe impairment or combination of impairments.” Keyser, 648 F.3d at 725. A 18 claimant has a severe impairment when the evidence establishes that an impairment has more than 19 a minimal effect on an individual’s ability to perform basic work activities. Webb v. Barnhart, 433 20 F.3d 683, 686 (9th Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. §§ 21 404.1522(a), 416.922(a) (“An impairment or combination of impairments is not severe if it does 22 not significantly limit your physical or mental ability to do basic work activities.”). The regulations 23 define “basic work activities” as “the abilities and aptitudes necessary to do most jobs,” which 24 include physical functions such as walking, standing, sitting, pushing, and carrying, and mental 25 functions such as understanding and remembering simple instructions; responding appropriately in 26 a work setting; and dealing with changes in a work setting. 20 C.F.R. §§ 404.1522(b), 416.922(b). 27 In the Ninth Circuit, step two of the disability inquiry is “a de minimis screening device to 1 determine clearly the effect of an impairment or combination of impairments on the individual’s
2 ability to do basic work activities, the sequential evaluation should not end with the not severe
3 evaluation step.” Webb, 433 F.3d at 687 (citing SSR 85-28). Moreover, “once the ALJ finds the
4 claimant has at least one severe impairment at Step Two, the ALJ must consider all the claimant’s
5 impairments wh` en formulating the claimant’s RFC, including those impairments the ALJ 6 determined to be non-severe.” Kim R. S. v. Kijakazi, No. 5:21-cv-00546-JDE, 2022 WL 1405429, 7 at *3 (C.D. Cal. May 4, 2022) (citing Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017)). 8 “Thus, even if an ALJ erred by finding a particular impairment to be non-severe at Step Two, the 9 error is harmless so long as the limitations of that impairment are considered when formulating the 10 claimant’s RFC.” (Id.) (citing cases); accord Scott H. v. Kijakazi, No. 3:20-cv-00226-SLG, 2022 11 WL 392293, at *9 (D. Alaska Feb. 9, 2022). 12 The ALJ is responsible for determining credibility,5 resolving conflicts in medical 13 testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). A 14 claimant’s statements of pain or other symptoms are not conclusive evidence of a physical or mental 15 impairment or disability. 42 U.S.C. § 423(d)(5)(A); see SSR 16-3p, 2017 WL 5180304, at *2 (“an 16 individual’s statements of symptoms alone are not enough to establish the existence of a physical 17 or mental impairment or disability”); see also Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) 18 (“An ALJ is not required to believe every allegation of disabling pain or other non-exertional 19 impairment.”) (internal quotation marks and citation omitted); Molina v. Astrue, 674 F.3d 1104, 20 1104 (9th Cir. 2012) (same), superseded on other grounds by 20 C.F.R. § 404.1502(a). 21 Determining whether a claimant’s testimony regarding subjective pain or symptoms is credible 22 requires the ALJ to engage in a two-step analysis. (Id. at 1112). The ALJ must first determine if 23 “the claimant has presented objective medical evidence of an underlying impairment which could 24 reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 25
26 5 SSR 16-3p applies to disability applications heard by the agency on or after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that subjective 27 symptom evaluation is not “an examination of an individual’s character but an endeavor to “determine how symptoms limit [the] ability to perform work-related activities.” SSR 16-3p, 2017 1 504 F.3d 1028, 1036 (9th Cir. 2007) (internal punctuation and citations omitted). This does not
2 require the claimant to show that his impairment could be expected to cause the severity of the
3 symptoms that are alleged, but only that it reasonably could have caused some degree of symptoms.
4 Smolen, 80 F.3d at 1282.
5 If the fir`s t step is met and there is no evidence of malingering, “the ALJ must provide 6 ‘specific, clear and convincing reasons for’ rejecting the claimant’s testimony.” Treichler v. 7 Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1281). See 8 Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1160 (9th Cir. 2008) (noting an adverse 9 credibility finding must be based on “clear and convincing reasons”). The ALJ must make findings 10 that support this conclusion, and the findings must be sufficiently specific to allow a reviewing 11 court to conclude the ALJ rejected the claimant’s testimony on permissible grounds and did not 12 arbitrarily discredit the claimant’s testimony. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). 13 The Ninth Circuit does “not require ALJs to perform a line-by-line exegesis of the 14 claimant’s testimony, nor do they require ALJs to draft dissertations when denying benefits.” 15 Stewart v. Kijakazi, No. 1:22-cv-00189-ADA-HBK, 2023 WL 4162767, at *5 (E.D. Cal. Jun. 22, 16 2023), findings and recommendations adopted, 2023 WL 5109769 (Aug. 8, 2023); see Record v. 17 Kijakazi, No. 1:22-cv-00495-BAM, 2023 WL 2752097, at *4 (E.D. Cal. Mar. 31, 2023) (“Even if 18 the ALJ’s decision is not a model of clarity, where the ALJ’s ‘path may reasonably be discerned,’ 19 the Court will still defer to the ALJ’s decision.”) (quoting Wilson v. Berryhill, 757 Fed. Appx. 595, 20 597 (9th Cir. 2019)). “The standard isn’t whether our court is convinced, but instead, whether the 21 ALJ’s rationale is clear enough that it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 22 494 (9th Cir. 2022) (the clear and convincing standard requires an ALJ to show his work). 23 The ALJ may consider numerous factors in weighing a claimant’s credibility, including “(1) 24 ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior 25 inconsistent statements concerning the symptoms, and other testimony by the claimant that appears 26 less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a 27 prescribed course of treatment; and (3) the claimant’s daily activities.” Smolen, 80 F.3d at 1284. 1 identified in SSR 16-3P. (Id.) (citing Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991)).
2 Accord Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). These factors
3 include:
4 (1) Daily activities; (2) The location, duration, frequency, and intensity of pain or
5 other sym ` ptoms; (3) Factors that precipitate and aggravate the symptoms; (4) The type, dosage, effectiveness, and side effects of any medication an individual takes 6 or has taken to alleviate pain or other symptoms; (5) Treatment, other than medication, an individual receives or has received for relief of pain or other 7 symptoms; (6) Any measures other than treatment an individual uses or has used to 8 relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and (7) Any other factors 9 concerning an individual’s functional limitations and restrictions due to pain or other symptoms. 10 11 SSR 16-3P, 2017 WL 5180304, at *7. See 20 C.F.R. § 404.1529(c)(3). If the ALJ’s finding is 12 supported by substantial evidence, the court may not engage in second-guessing. Tommasetti, 533 13 F.3d at 1039 (citations and internal quotation marks omitted). 14 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 15 demanding requirement in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th 16 Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). “A 17 finding that a claimant’s testimony is not credible must be sufficiently specific to allow a reviewing 18 court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and did 19 not arbitrarily discredit a claimant’s testimony regarding pain.” Brown-Hunter v. Colvin, 806 F.3d 20 487, 493 (9th Cir. 2015) (citation and internal quotation marks omitted). 21 “The fact that a claimant’s testimony is not fully corroborated by the objective medical 22 findings, in and of itself, is not a clear and convincing reason for rejecting it.” Vertigan, 260 F.3d 23 at 1049. See 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity 24 and persistence of your pain or other symptoms or about the effect your symptoms have on your 25 ability solely because the objective medical evidence does not substantiate your statements.”). 26 Rather, where a claimant’s symptom testimony is not fully substantiated by the objective medical 27 record, the ALJ must provide additional reasons for discounting the testimony. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). “The ALJ must specify what testimony is not credible and 1 identify the evidence that undermines the claimant’s complaints – ‘[g]eneral findings are
2 insufficient.’” (Id.) (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).
3 However, the medical evidence “is still a relevant factor in determining the severity of the
4 claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
5 The Ninth Circu`i t has distinguished testimony that is “uncorroborated” by the medical evidence 6 from testimony that is “contradicted” by the medical records and concluded that contradictions with 7 the medical records, by themselves, are enough to meet the clear and convincing standard. 8 Hairston v. Saul, 827 Fed. Appx. 772, 773 (9th Cir. 2020) (quoting Carmickle, 533 F.3d at 1161). 9 2. Parties’ Contentions 10 Plaintiff contends the ALJ erroneously concluded there is no evidence that her diabetes and 11 obesity impairments significantly limit her ability to perform basic work activities as the ALJ failed 12 to address how these impairments significantly limit her ability to stand and walk for extended 13 periods of time. (Doc. 22 at 10). Plaintiff argues her obesity has a direct effect on her diabetes and 14 that she “has had continued complications and received treatment for her diabetes and obesity” and 15 cites to various findings in the record in support. (Id. at 10-12) (citing AR 420, 698) (“[o]n July 7, 16 2017, [Plaintiff] had a recorded BMI of 54.54 and on March 5, 2020 she had a BMI of 56.55”); 17 (citing AR 648, 654, 659) (“her treating providers noted on objective physical exams that she was 18 morbidly obese”); (citing AR 601, 603) (“on September 30, 2019, with a BMI of 59.56, [she] 19 underwent a diabetic foot exam that documented” findings supporting Plaintiff’s argument); (citing 20 AR 603) (“provider opined that she was in risk [of] category 2 for diabetic foot complications which 21 is equated with ‘loss of protective sensation with weakness, deformity, callus, or pre-ulcer but no 22 history of ulceration.’”); (citing AR 567, 571, 576, 583, 588, 608, 613, 617, 620, 622, 629, 634, 23 639, 682) (“[i]n addition to complaints of pain and swelling on her feet, 1+ to 2+ pitting edema in 24 her bilateral feet was noted frequently on objective physical exams.”). Plaintiff further contends 25 the ALJ erred in failing to assess her subjective pain symptomology in determining that her diabetes 26 and obesity were non-severe and in omitting functional limitations from the RFC. (Id. at 12). 27 Defendant argues the ALJ properly evaluated Plaintiff’s obesity and diabetes, and that the 1 the ALJ reasonably concluded that Plaintiff’s impairments of obesity and diabetes were non-severe
2 because physical examination showed no abnormalities or skin lesions, Plaintiff’s provider noted
3 that she was likely noncompliant in her insulin regimen due to her high sugar levels, the use of
4 Metformin in addition to insulin showed her blood sugar levels trending down, she had a normal
5 neurological exa`m ination, and Plaintiff denied having symptoms such as numbness, tingling, and 6 polydipsia. (Id. at 14). Defendant contends the ALJ properly noted that two physicians concluded 7 Plaintiff’s diabetes was non-severe and therefore the ALJ properly reached the same conclusion. 8 (Id.). Defendant further contends that the ALJ properly considered the impact of Plaintiff’s obesity 9 on her functionality, finding it non-severe as no treating or examining physician assessed any 10 restrictions based on her obesity and there was no evidence it significantly limited her ability to 11 perform basic work activities. (Id. at 15). Defendant argues that the ALJ properly considered 12 Plaintiff’s symptomology testimony in finding it inconsistent with the objective medical evidence. 13 The ALJ cites to neutral findings from examinations, Plaintiff’s positive response to treatment, and 14 activities of daily living (ADL) “as evidence that Plaintiff’s symptoms were not totally disabling[.]” 15 (Id. at 16). Defendant argues that even if the ALJ improperly found the impairments non-severe, 16 “any error was harmless” as the ALJ “found no functional limitations resulted from Plaintiff’s 17 diabetes and obesity” in assessing the RFC. (Id.). 18 3. Analysis 19 i. The ALJ did not err in finding no evidence that Plaintiff’s diabetes and 20 obesity significantly limit her ability to perform basic work activities 21 The ALJ found Plaintiff’s diabetes was non-severe and cited to evidence in the record to 22 support that determination. (AR 22) (“As there is no evidence that the claimant’s diabetes 23 significantly limits her ability to perform basic work activities, the Administrative Law Judge finds 24 that it is non-severe.”); (see id. at 21) (“A physical exam showed no abnormalities and her treating 25 physician stated that shew as likely noncompliant with her insulin regimen. She was started on 26 Metformin in addition to insulin … [and] [b]y September 27, 2018, her A1C and blood sugar 27 readings were trending down and she had a normal neurological exam. There were no skin lesions 1 heat or cold intolerance[.]”). This constitutes substantial evidence. See Kenneth K. v. Berryhill,
2 No. 3:17-cv-01271-JR, 2018 WL 6991256, at *4 (D. Or. Dec. 19, 2018) (finding ALJ’s
3 determination that claimant’s diabetes was not a severe impairment was supported by substantial
4 evidence because medical records showed her diabetes was “controlled”), report and
5 recommendation` adopted by 2019 WL 165700 (Jan. 10, 2019). The ALJ acknowledged that 6 Plaintiff is morbidly obese and that “the obesity reasonably has some impact on functioning, but 7 not beyond the [assessed RFC.]” (AR 30). The ALJ therefore found the impairment non-severe 8 “as no treating or examining physician has given her any restrictions based on obesity and there is 9 no evidence that this impairment significantly limits [Plaintiff’s] ability to perform basic work 10 activities[.]” (AR 22). Further, the ALJ considered the third-party report of Plaintiff’s daughter, 11 Alice Thao, and allegation therein that Plaintiff experienced physical symptoms such as “leg 12 cramps.” (AR 26). The ALJ discounted that allegation because “[it is] not documented in any 13 physical exams.” (Id.). 14 On September 30, 2019, Plaintiff visited a provider for a diabetic foot evaluation which 15 noted problems including diabetes and obesity. (AR 601-05). The bilateral foot exam revealed 16 that Plaintiff had “[p]ulse at dorsalis pedis is undetectable and posterior tibalis is undetectable. Her 17 skin has a callus present at midfoot and heels bilaterally and lack of hair. Sensory exam shows 18 decreased proprioception and decreased vibratory sense to tuning force. There is no pedal or ankle 19 edema present.” (AR 603). The provider assessed a risk category of “2” and noted “[l]oss of 20 protective sensation with weakness, deformity, callus or pre-ulcer but no history of ulceration. 21 Patient does not use footwear appropriate for category” and noted in the neurological exam no gross 22 abnormalities. (Id.). 23 However, the Court finds that none of these treatment records state or suggest that Plaintiff 24 suffers from any significant limitations as a result of her diabetes or obesity, either singly or in 25 combination, that affect her ability to stand, walk, and otherwise perform basic work activities. The 26 September 30, 2019, exam findings corroborate this determination as the provider noted Plaintiff 27 participates “in routine exercise” and “[s]he walk[s.]” (AR 603). Plaintiff’s assertion that obesity 1 does not arise to evidence that she currently faces significant limitations in her ability to perform
2 basic work activities. (Doc. 22 at 12).
3 Because the ALJ properly noted that no treating or examining physician has assessed any
4 restrictions based on her obesity and there is no record evidence that her impairments significantly
5 limit her ability t`o stand, walk, or perform basic work activities, the Court finds the ALJ did not err 6 in finding the impairments non-severe. Smolen, 80 F.3d at 1290 (“An impairment or combination 7 of impairments is not severe if it does not significantly limit your physical or mental ability to do 8 basic work activities.”). 9 ii. The ALJ did not err in discounting Plaintiff’s subjective pain testimony 10 The Court finds the ALJ provided clear and convincing reasons in properly discounting 11 Plaintiff’s subjective pain testimony. The ALJ acknowledged Plaintiff’s obesity and diabetes and 12 treatment thereof throughout the record and noted that her obesity “reasonably has some impact on 13 functioning” and considered its effects as documented in the medical opinions in assessing the RFC. 14 (AR 30). The ALJ noted examination findings showed Plaintiff experienced no abnormalities. (AR 15 21). The record evidence supports this finding given that Plaintiff experienced swelling in her feet 16 but also normal range of motion and gait and no tenderness nor pain on palpitation. (AR 567) 17 (“Inspection of both feet reveals swelling … [ROM] is normal … No pain is noted … at all the 18 joints of the right foot. No tenderness is noted on palpitation); (see also id. at 576, 583) (same). 19 Further, evidence in the record contradicts Plaintiff’s subjective pain testimony. The ALJ noted 20 that Plaintiff stated she had applied for work but was not hired, which shows “she considers herself 21 capable for performing work activity” which is “inconsistent with her allegations of disabling 22 symptoms.” (AR 25); (see id. at 506) (“[Plaintiff] complains that she did resume in English, but 23 was not accepted for job at beauty store. ‘they did not ask [her] to speak English.’”). The ALJ also 24 reasonably considered other occasions noted in the record where Plaintiff appeared to give 25 inconsistent or contradictory statements, including about her ability to speak English (AR 24). And 26 as noted above, Plaintiff’s reports documented in various examination records that she routinely 27 exercises and “walks” contradict her allegations of disabling pain. (AR 603). Smolen, 80 F.3d at 1 | evaluation, such as the claimant’s ... prior inconsistent statements concerning the symptoms, and 2 | other testimony by the claimant that appears less than candid”’). 3 Because Plaintiff fails to show the ALJ erred in discounting her subjective pain testimony, 4 | and the ALJ provided clear and convincing reasons that contradict Plaintiff's sole complaint at the 5 | hearing that she ‘cannot work” because standing for a long time causes her feet to swell, the Court 6 | finds the ALJ did not err in rejecting that testimony. Hairston, 827 Fed. Appx. at 773. 71 IV. CONCLUSION AND ORDER 8 For the reasons set for above, IT IS HEREBY ORDERED that: 9 1. Plaintiff's motion for summary judgment (Doc. 22) is DENIED; 10 2. Defendant’s cross-motion for summary judgment (Doc. 23) is GRANTED; 11 3, The ALJ’s decision is affirmed; and 12 4. The Clerk of the Court is DIRECTED to enter judgment in favor of Defendant and 13 close this case. 14 | Tr Is SO ORDERED. 15 | } ) Bo Dated: _ May 7, 2025 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 93