1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VIRGINIA GUEVARA, Case No. 1:22-cv-00490-CDB (SS)
12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR 13 v. SUMMARY JUDGMENT AND AFFIRM THE COMMISSIONER OF SOCIAL 14 COMMISSIONER OF SOCIAL SECURITY, SECURITY’S DECISION
15 Defendant. 14-DAY DEADLINE
16 (Docs. 18, 20)
17 Clerk of the Court to Assign District Judge
19 Plaintiff Virginia Guevara (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 21 disability benefits under the Social Security Act. (Doc. 1). The matter is currently before the 22 Court on the parties’ briefs, which were submitted without oral argument. (Docs. 18, 20). Upon 23 review of the Administrative Record (“AR”) and the parties’ briefs, the undersigned recommends 24 that the Commissioner’s decision be affirmed. 25 I. BACKGROUND 26 A. Administrative Proceedings and ALJ’s Decision 27 Plaintiff filed a Title XVI application for supplemental security income on August 19, 1 Plaintiff requested a hearing before an administrative law judge (“ALJ”). (AR 60-91, 106). On 2 May 13, 2021, ALJ Laureen Penn held a hearing, during which Plaintiff, represented by counsel, 3 and an independent vocational expert testified. (AR 30-59). The ALJ issued her decision on June 4 2, 2021, finding Plaintiff not disabled. (AR 13-23). On February 18, 2022, the Appeals Council 5 declined Plaintiff’s request for review. (AR 1-3). 6 In her decision, the ALJ engaged in the five-step sequential evaluation process set forth by 7 the Social Security Administration. 20 C.F.R. §§ 404.1520(a), 416.920(a). At step one, the ALJ 8 found Plaintiff had not engaged in substantial gainful activity since August 19, 2019, the 9 application date. (AR 15). At step two, the ALJ determined that Plaintiff had the following 10 severe impairments: “cervical and lumbar degenerative disc disease with lumbar radiculopathy 11 status/post-fusion surgery, degenerative joint disease of the right shoulder, and obesity.” (AR 12 15). The ALJ concluded Plaintiff’s anxiety disorder and depressive disorder did “not cause more 13 than minimal limitation in the claimant’s ability to perform basic mental work activities” such 14 that they were non-severe. (AR 16). In reaching this conclusion, the ALJ cited the lack of 15 allegations of difficulty with memory and memory deficits in the record; the lack of evidence of 16 aberrant behavior or panic attacks; Plaintiff’s ability to maintain appropriate attention and 17 concentration without noted deficits; Plaintiff’s ability to maintain appropriate mood and affect at 18 treatment visits despite reports of depressive and anxious symptoms; Plaintiff’s minimal mental 19 health treatment; and Plaintiff’s daily social activities. (AR 16). The ALJ also relied on the 20 administrative agency psychological consultants’ opinions, which both concluded Plaintiff had no 21 severe mental impairments. (AR 17). 22 At step three, the ALJ found that Plaintiff did not have an impairment, or combination of 23 impairments, that met or medically exceeds the severity of one of the listed impairments in 20 24 C.F.R. Part 404, Subpart P, Appendix 1. (AR 17-18). The ALJ specifically discussed listings 25 within the musculoskeletal disorders category. (AR 17). 26 The ALJ determined Plaintiff had the residual functional capacity (“RFC”) to perform 27 light work “except the claimant can stand and/or walk for four hours and sit for six hours out of 1 workstation.” (AR 18). Additionally, Plaintiff could “occasionally climb ramps and stairs, but 2 cannot climb ladders, ropes, or scaffolds;” “occasionally balance, stoop, kneel, crouch, and 3 crawl;” “frequently reach overhead with the right upper extremity;” and “frequently finger and 4 handle bilaterally,” but never have concentrated exposure to hazards, such as unprotected heights 5 and moving machinery. (AR 18). 6 In formulating the RFC, the ALJ considered Plaintiff’s allegations of “difficulty with 7 lifting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, using her hands, 8 concentration, and completing tasks.” (AR 18). The ALJ also considered Plaintiff’s testimony 9 that she used a walker for a few weeks following surgery on her back, after which she continued 10 to experience sciatica and tailbone pain as well as shoulder pain; she experienced increased 11 depression due to the Covid-19 pandemic and recently started taking medication for such; and 12 “she could only lift ten to fifteen pounds, used a shower chair, and had to change positions every 13 fifteen to thirty minutes.” (AR 18). The ALJ concluded that while Plaintiff’s impairments could 14 be expected to cause the alleged symptoms, “the claimant’s statements concerning the intensity, 15 persistence and limiting effects of these symptoms are not entirely consistent with the medical 16 evidence and other evidence in the record.” (AR 19). 17 The ALJ discussed the medical record in support of her conclusion to discount Plaintiff’s 18 testimony. Concerning Plaintiff’s lower extremity functioning, the ALJ indicated that while 19 medical records reflected complaints of pain and numbness, reduced range of motion, and 20 positive straight leg tests leading up to Plaintiff’s spinal surgery in July 2020, the records also 21 reflected Plaintiff was “ambulating in a normal fashion” with normal gait and strength.” (AR 19). 22 After surgery, Plaintiff initially reported doing great but eventually began to complain about 23 lower back soreness and buttock pain but denied taking pain medications. (AR 19). Based on 24 Plaintiff’s lumbar impairments and her obesity, the ALJ included the standing/walking limitations 25 and other postural limitations in the RFC. (AR 19). The ALJ also considered the records 26 regarding Plaintiff’s upper extremity functioning, and concluded they further supported the 27 postural limitations. (AR 20). 1 specifically alleged inability to lift more than ten to fifteen pounds is not entirely consistent with 2 the evidence given her normal gait and strength and only mild cervical and shoulder arthritis,” 3 and Plaintiff did not need an assistive device outside of the time she was recovering from surgery. 4 (AR 20). As to Plaintiff’s “alleged depression and difficulty with concentration and completing 5 tasks,” the ALJ concluded such was not consistent with the record based on Plaintiff’s minimal 6 mental health treatment and treatment notes showing “generally normal memory, behavior, 7 concentration, and mood despite some reported symptoms of depression and anxiety recently 8 controlled with medication.” (AR 20). 9 The ALJ found the administrative agency medical consultants’ opinions to be 10 unpersuasive because while they were “supported by rationale based on a review of the evidence 11 available at the time of determination,” they were not entirely consistent with subsequent 12 evidence of Plaintiff’s “reported numbness and weakness prior to lumbar surgery and post- 13 surgical leg and tailbone pain supportive of the reduced stand/walk and a sit-stand opinion.” (AR 14 21). 15 At step four, the ALJ found that Plaintiff was capable of performing her past relevant 16 work as a receptionist both as actually performed and as performed in the national economy. (AR 17 21-22). Alternatively, the ALJ concluded at step five that jobs existed in significant numbers that 18 Plaintiff could perform, including as an information clerk, general office clerk, file clerk, or order 19 clerk. (AR 22-23). Thus, the ALJ concluded that Plaintiff had not been under a disability from 20 August 19, 2019, through the date of the decision. (AR 23). 21 B. Medical Record and Hearing Testimony 22 The relevant hearing testimony and medical record were reviewed by the undersigned and 23 will be referenced below as necessary to the undersigned’s recommendation. 24 II. STANDARD OF REVIEW 25 A district court’s review of a final decision of the Commissioner of Social Security is 26 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 27 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 1 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 2 conclusion.” (Id. at 1159) (quotation and citation omitted). Stated differently, substantial 3 evidence equates to “more than a mere scintilla[,] but less than a preponderance.” (Id.) (quotation 4 and citation omitted). In determining whether the standard has been satisfied, a reviewing court 5 must consider the entire record as a whole rather than searching for supporting evidence in 6 isolation. (Id.) 7 The court will review only the reasons provided by the ALJ in the disability determination 8 and may not affirm the ALJ on a ground upon which he did not rely. Social Security Act § 205, 9 42 U.S.C. § 405(g). In reviewing a denial of benefits, a district court may not substitute its 10 judgment for that of the Commissioner. “The court will uphold the ALJ’s conclusion when the 11 evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 12 1035, 1038 (9th Cir. 2008). Further, a district court will not reverse an ALJ’s decision on account 13 of an error that is harmless. (Id.). An error is harmless where it is “inconsequential to the 14 [ALJ’s] ultimate nondisability determination.” (Id). (quotation and citation omitted). The party 15 appealing the ALJ’s decision generally bears the burden of establishing that it was 16 harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 17 A claimant must satisfy two conditions to be considered “disabled” and eligible for 18 benefits within the meaning of the Social Security Act. First, the claimant must be “unable to 19 engage in any substantial gainful activity by reason of any medically determinable physical or 20 mental impairment which can be expected to result in death or which has lasted or can be 21 expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 22 1382c(a)(3)(A). Second, the claimant’s impairment must be “of such severity that he is not only 23 unable to do his previous work[,] but cannot, considering his age, education, and work 24 experience, engage in any other kind of substantial gainful work which exists in the national 25 economy.” 42 U.S.C. § 1382c(a)(3)(B). 26 The Commissioner has established a five-step sequential analysis to determine whether a 27 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 1 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 2 claimant is not disabled. 20 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 4 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 5 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 6 impairments which significantly limits [his or her] physical or mental ability to do basic work 7 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s 8 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 9 claimant is not disabled. (Id.). 10 At step three, the Commissioner compares the claimant’s impairment to impairments 11 recognized by the Commissioner to be so severe as to preclude a person from engaging in 12 substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as severe or more 13 severe than one of the enumerated impairments, the Commissioner must find the claimant 14 disabled and award benefits. 20 C.F.R. § 416.920(d). 15 If the severity of the claimant’s impairment does not meet or exceed the severity of the 16 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 17 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 18 ability to perform physical and mental work activities on a sustained basis despite his or her 19 limitations (20 C.F.R. § 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 20 analysis. 21 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 22 claimant is capable of performing work that he or she has performed in the past (past relevant 23 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant 24 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If 25 the claimant is incapable of performing such work, the analysis proceeds to step five. 26 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 27 claimant is capable of performing other work in the national economy. 20 C.F.R. § 1 factors such as the claimant’s age, education, and past work experience. (Id.). If the claimant is 2 capable of adjusting to other work, the Commissioner must find that the claimant is not 3 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to other work, the 4 analysis concludes with a finding that the claimant is disabled and is therefore entitled to 5 benefits. (Id.). 6 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 7 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 8 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 9 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 10 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 11 III. ISSUES AND ANALYSIS 12 Plaintiff seeks judicial review of the Commissioner’s final decision denying her 13 application. (Doc. 1). Plaintiff raises the following issues: 14 1. The ALJ’s RFC is not supported by substantial evidence. (Doc. 18 at 7). 15 2. The ALJ’s finding that Ms. Guevara’s mental impairments were “not severe” at Step 16 Two is harmfully erroneous. (Id.). 17 The undersigned addresses the second issue first so that the issues may be addressed in the order 18 in which they arise in the sequential analysis. 19 A. Whether the ALJ Properly Concluded Plaintiff’s Mental Impairments were “Not 20 Severe” 21 “In step two of the disability determination, an ALJ must determine whether the claimant 22 has a medically severe impairment or combination of impairments.” Keyser v. Comm’r of Soc. 23 Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011). A claimant has a severe impairment when the 24 evidence establishes that an impairment has more than a minimal effect on an individual’s ability 25 to perform basic work activities. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); Smolen v. 26 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. §§ 404.1522(a), 416.922(a) (“An 27 impairment or combination of impairments is not severe if it does not significantly limit your 1 activities” as “the abilities and aptitudes necessary to do most jobs,” which include physical 2 functions such as walking, standing, sitting, pushing, and carrying, and mental functions such as 3 understanding and remembering simple instructions; responding appropriately in a work setting; 4 and dealing with changes in a work setting. 20 C.F.R. §§ 404.1522(b), 416.922(b). 5 In the Ninth Circuit, step two of the disability inquiry is “a de minimis screening device to 6 dispose of groundless claims.” Smolen, 80 F.3d at 1290. Thus, “[i]f an adjudicator is unable to 7 determine clearly the effect of an impairment or combination of impairments on the individual’s 8 ability to do basic work activities, the sequential evaluation should not end with the not severe 9 evaluation step.” Webb, 433 F.3d at 687 (citing SSR 85-28). Moreover, once the ALJ finds the 10 claimant has at least one severe impairment at Step Two, the ALJ “must consider limitations and 11 restrictions imposed by all of an individual’s impairments, even those that are not ‘severe.’” Buck 12 v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). Thus, if step two is resolved in the claimant’s 13 favor, any error is harmless so long at the ALJ considered limitations from all of the claimant’s 14 impairments when formulating the RFC. See Peebles v. Saul, 827 F. App’x 727, 729 (9th Cir. 15 2020) (citing Buck, 869 F. 3d at 1048-49). 16 Plaintiff specifically challenges the ALJ’s conclusion regarding her mental impairments, 17 which are analyzed under the “paragraph B” criteria in the context of four broad areas of 18 functioning: (1) understanding, remembering, or applying information; (2) interacting with 19 others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. 20 20 C.F.R. Pt. 404, Subpt. P., App. 1. In rating the degree of limitation in each of the four 21 functional areas, an ALJ “will use the following five-point scale: None, mild, moderate, marked, 22 and extreme.” 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). If the ALJ rates the claimant’s 23 limitations as “none” or “mild” in each of the four areas, the ALJ “will generally conclude that 24 [the claimant’s] impairment(s) is not severe, unless the evidence otherwise indicates that there is 25 more than a minimal limitation in [the claimant’s] ability to do basic work activities.” 20 C.F.R. 26 §§ 404.1520a(d)(1), 416.920a(d)(1). Legal error occurs when an ALJ neglects to document her 27 application of the paragraph B criteria or fails to include a specific finding as to the degree of 1 evidence supports an ALJ’s finding that a claimant’s mental impairments are non-severe if (1) she 2 properly considered the claimant’s mental health records, (2) she properly considered the 3 Paragraph B criteria, and (3) the record supports her findings regarding the non-severity. See 4 Woods v. Kijakazi, 32 F.4th 785, 794 (9th Cir. 2022). 5 Here, Plaintiff argues that despite the “objective and subjective evidence of a diagnosed 6 psychiatric impairment that ‘more than minimally’ interferes with her concentration ability,” the 7 ALJ determined her mental impairments were non-severe. (Doc. 18 at 34). Plaintiff asserts the 8 ALJ improperly relied on the lack of mental health treatment and instead of rejecting Plaintiff’s 9 complaints, “the ALJ should have properly developed the record and obtained a consultative 10 psychiatric examination.” (Id. at 36). 11 Defendant responds that “the ALJ appropriately relied upon a lack of any significant 12 mental health complaints or treatments until just prior to the hearing, along with the assessments 13 of the State agency psychiatric consultants, to find Plaintiff’s alleged mental health conditions 14 were non-severe.” (Doc. 20 at 19). Defendant argues “Plaintiff’s use of psychiatric medication is 15 hardly conclusive proof of severity” of her mental impairments, especially since Plaintiff 16 “testified that her symptoms had only started a few months before the hearing,” such that Plaintiff 17 had not met her burden of “establishing a mental impairment that significantly limited her ability 18 to do basic work activities for at least twelve consecutive months.” (Id. at 20-21). Additionally, 19 Defendant argues the ALJ properly relied on the lack of mental health treatment because “there is 20 no evidence to suggest that Plaintiff declined to pursue mental health treatment until shortly 21 before the hearing because she lacked the ‘judgment’ to recognize her need for treatment.” (Id. at 22 21). 23 Substantial evidence supports the ALJ’s determination that Plaintiff’s mental impairments 24 were not severe. The ALJ considered Plaintiff’s medical records, including multiple reports of 25 “no aberrant behavior noted,” good insight and judgment with normal mood, and denials of 26 depression. (AR 16, citing AR 801, 826, 1187, 1197, 1392, 1418, 1438, 1476, 1800, 1870, 1947, 27 1955, 1960, 1963, 1979, 2022, 2910). The ALJ assessed Plaintiff’s impairments under the 1 functional areas. (AR 16). The records cited by the ALJ reflecting Plaintiff’s denial of 2 depression and provider’s reports of normal mood support this conclusion. 3 In support of her argument that the ALJ erred, Plaintiff points to an August 2017 record 4 indicating she complained of anxiety and depression and was referred to behavioral health 5 because she was not ready to try medications; test results from January and June 2020 indicating 6 her answers reflected moderate to severe depression and anxiety; and an April 2021 record where 7 she reported depression starting three months earlier and was prescribed medication. (Doc. 18 at 8 32-33, citing AR 552, 556, 2928, 2907, 2937, 2944, 2945). However, “[t]he mere existence of an 9 impairment is insufficient proof of a disability.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 10 1993); see Jose S. v. Kijakazi, Case No. 2:20-cv-09561-GJS, 2022 WL 837416, at *2 (C.D. Cal. 11 Mar. 21, 2022) (“[A] diagnosis alone does not establish disability.”); Draiman v. Berryhill, No. 12 CV 17-747-KS, 2018 WL 895445, at *7 (C.D. Cal. Feb. 13, 2018) (finding that claimant’s 13 “diagnoses of Major Depressive Disorder and Generalized Anxiety Disorder are insufficient to 14 demonstrate that she has a severe mental impairment” at step two). The key inquiry is not 15 whether the claimant has a diagnosis for a mental impairment, but rather whether there are 16 findings by the medical sources to support that the mental impairment is “severe” under the 17 paragraph B criteria. See David F.M. v. Saul, No. 5:20-CV-01362-AFM, 2021 WL 2646905, at 18 *3 (C.D. Cal. June 25, 2021) (citing Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985)). 19 Here, the records Plaintiff cites establish her own occasional complaints of anxiety and 20 depression without any evidence from medical sources that these impairments impacted her basic 21 work abilities as required to establish they were severe. Additionally, these sporadic records over 22 the lengthy period covered by the record do not establish that Plaintiff’s mental impairments 23 “have lasted or [were] expected to last for a continuous period of at least 12 months.” 20 C.F.R. 24 §§ 404.1509, 416.909. 25 Further, even if the ALJ erred in finding Plaintiff’s mental impairments were non-severe, 26 any error was harmless because the ALJ proceeded through the sequential analysis and 27 considered all of Plaintiff’s impairments in formulating the RFC. E.g., Kim R.S. v. Kijakazi, No. 1 1048-49) (“even if an ALJ erred by finding a particular impairment to be non-severe at Step Two, 2 the error is harmless so long as the limitations of that impairment are considered when 3 formulating the claimant's RFC.”) (citing cases). Plaintiff fails to point to any alleged limitations 4 caused by her mental impairments that the ALJ failed to consider or include in the RFC. The 5 closest the Plaintiff comes is pointing to her own testimony that her pain—rather than her 6 depression or anxiety—impacts her concentration and memory. (Doc. 18 at 33-34 (citing AR 44- 7 45)). However, as discussed below, the ALJ provided clear and convincing reasons for rejecting 8 Plaintiff’s symptom testimony. 9 B. Whether the RFC is Supported by Substantial Evidence 10 Plaintiff argues the ALJ’s RFC is not supported by substantial evidence because (1) “the 11 ALJ had a duty to develop the record and send [Plaintiff] for an orthopedic examination in order 12 to obtain an expert assessment of her functioning post-multiple invasive surgeries, rather than use 13 her lay knowledge to tack on further restrictions to the State Agency RFC opinion;” and (2) the 14 “ALJ’s rejection of [Plaintiff’s] ‘allegations of a less than sedentary ability to sit, stand and walk 15 status-post surgery is not supported by the requisite ‘clear and convincing’ evidence.” (Doc. 18 at 16 15, 27). 17 i. Duty to Develop the Record 18 Plaintiff first argues the ALJ had a duty to further develop the record because she 19 underwent two surgeries after the state agency consultants’ review of the record. 20 Generally, “[t]he claimant has the burden of proving that she is disabled.” Smolen, 80 21 F.3d at 1288. However, “[t]he ALJ always has a ‘special duty to fully and fairly develop the 22 record and to assure that the claimant’s interests are considered … even when the claimant is 23 represented by counsel.’” Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (quoting Brown 24 v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). Further, “[w]hen a claimant is not represented by 25 counsel, this responsibility is heightened.” Id. This is because “Social Security proceedings are 26 inquisitorial rather than adversarial.” Schiaffino v. Saul, 799 F. App’x 473, 476 (9th Cir. 2020) 27 (quoting Sims v. Apfel, 530 U.S. 103, 111-12 (2000)). In particular, the ALJ’s duty to develop the 1 interests. Tonapetyan v. Halter, 242 F.3d 1133, 1150 (9th Cir. 2001) (citing Higbee v. Sullivan, 2 975 F.2d 558, 561 (9th Cir. 1992)). 3 Nevertheless, “[a]n ALJ’s duty to develop the record further is triggered only when there 4 is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 5 evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); Bayliss v. Barnhart, 427 6 F.3d 1211, 1217 (9th Cir. 2005) (citing 20 C.F.R. §§ 404.1512(e), 416.912(e)); see Brown v. 7 Berryhill, 697 F. App’x 548, 549 (9th Cir. 2017) (“Because the record evidence was not 8 ambiguous and the record was sufficient to allow for proper evaluation of the evidence, the ALJ 9 was not required to re-contact Brown’s doctors or further develop the record.”). 10 Here, Plaintiff argues that the ALJ impermissibly used “her lay judgment to review nearly 11 a year of raw medical evidence and formulate a function-by-function RFC assessment.” (Doc. 18 12 at 21). Plaintiff asserts the evidence not reviewed by a medical professional includes two surgical 13 reports and post-op treatment records. (Id. at 22-24). 14 Defendant responds that “the Commissioner’s regulations are abundantly clear that the 15 ALJ is permitted—indeed, required—to independently review and interpret the medical evidence 16 in assessing Plaintiff’s RFC, and is not limited to doing so only through the lens of a physician’s 17 opinion.” (Doc. 20 at 12) (record citation omitted). Defendant argues the ALJ “considered all 18 relevant evidence in the record as the regulation directs, including the later medical evidence that 19 Plaintiff purports to rely upon,” and, contrary to Plaintiff’s argument that “her back surgery [was] 20 essentially a failed procedure,” the post-operative evidence shows overall improvement consistent 21 with the RFC. (Id. at 14-15). Defendant asserts the ALJ did not have a duty to further develop 22 the record because “Plaintiff has not alleged any gaps or ambiguities in the record.” (Id. at 16). 23 Based on the records cited by the ALJ, substantial evidence supports the assigned RFC. 24 Plaintiff is correct that “[a]n ALJ is not allowed to use his own medical judgment in lieu of that of 25 a medical expert.” Vaughn v. Berryhill, 242 F. Supp. 3d 998, 1009-10 (E.D. Cal. 2017) 26 (collecting cases). However, there is nothing in the ALJ’s decision indicating that she interpreted 27 raw medical data or relied on her own medical judgment in constructing the RFC. Rather, the 1 improvement following the surgeries. (AR 19, citing AR 1950, 1951, 1955). Nor is there 2 anything suggesting to the Court that the record was ambiguous or inadequate as would be 3 necessary to trigger the ALJ’s duty to further develop the record. See Mayes, 276 F.3d at 459-60. 4 Rather, the ALJ relied on the state agency medical opinions, acknowledged Plaintiff had 5 undergone surgeries since the experts reviewed the record and reported post-surgical leg and 6 tailbone pain, and imposed limitations greater than those opined by the experts based on 7 Plaintiff’s complaints. (AR 19-21). Further, because the additional limitations resulted in a 8 narrower RFC than that considered by the experts, any alleged error in imposing the additional 9 limitations was harmless. See Johnson v. Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 1995) 10 (finding “overinclusion of debilitating factors” in hypothetical to vocational expert that were not 11 included in the ultimate RFC was “harmless simply because if a person can do a job that requires 12 increased concentration, the claimant is also capable of performing work that requires less 13 concentration”). 14 ii. Rejection of Plaintiff’s Symptom Testimony 15 Plaintiff next argues the ALJ erred in rejecting her symptom testimony, specifically with 16 respect to her allegations concerning her ability to sit, stand, and walk. 17 An ALJ engages in a two-step analysis when evaluating a claimant’s testimony regarding 18 subjective pain or symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 19 The ALJ must determine whether there is “objective medical evidence of an underlying 20 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 21 Id. (internal quotation marks omitted). “The claimant is not required to show that this impairment 22 could reasonably be expected to cause the severity of the symptom he has alleged; he need only 23 show that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 24 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 25 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the 26 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 27 gives specific, clear and convincing reasons for the rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 2 undermines the claimant’s complaints.” Id.; see Thomas, 278 F.3d at 958 (“[T]he ALJ must make 3 a credibility determination with findings sufficiently specific to permit the court to conclude that 4 the ALJ did not arbitrarily discredit claimant’s testimony.”). 5 However, “[t]he standard isn’t whether [the] court is convinced, but instead, whether the 6 ALJ’s rational is clear enough that it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 7 489, 499 (9th Cir. 2022). An ALJ’s reasonings as to subjective testimony “must be supported by 8 substantial evidence in the record as a whole.” Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 9 1995); see Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1161 (9th Cir. 2008) (“Accordingly, our 10 next task is to determine whether the ALJ’s adverse credibility finding of Carmickle’s testimony 11 is supported by substantial evidence under the clear-and-convincing standard.”). 12 Here, the ALJ concluded Plaintiff’s medically determinable impairments could reasonably 13 be expected to cause her alleged symptoms but rejected her testimony regarding the severity of 14 her symptoms with respect to lifting, sitting, standing, and walking. (AR 19). The ALJ discussed 15 MRI evidence of multilevel degenerative changes in Plaintiff’s lumbar spine but noted that while 16 Plaintiff had radicular pain and numbness, she was ambulating in a normal fashion and had 5/5 17 strength. (AR 19, citing AR 799, 802). Examinations showed positive straight leg raise testing 18 and reduced range of lumbar motion, but Plaintiff continued to exhibit normal gait and strength 19 through her spinal surgery in July 2020. (AR 19, citing AR 1122, 1386, 1390, 2903, 2908, 2917, 20 2922, 2929). One month after surgery, Plaintiff reported doing great, walking thirty minutes 21 daily, and not taking anything for pain. (AR 19, citing AR 1955). Three months post-surgery, 22 Plaintiff had “some lower back soreness after physical therapy and was taking tramadol as 23 needed.” (AR 19, citing AR 1981). At six-months, Plaintiff was considering restarting physical 24 therapy due to “buttock pain,” but she was not taking medication and denied radiculopathy, 25 numbness, tingling, and weakness. (AR 19, citing AR 1980). The ALJ found these records 26 supported the limitation to standing/walking four hours out of an eight-hour day with a sit/stand 27 option to change positions every thirty minutes. (AR 19). In explaining why the record did not 1 buttock/tailbone pain after sitting and leg pain after walking “were made during telehealth 2 consultations due to the pandemic so there are no physical examinations associated with them, but 3 they have been accounted for in the residual functional capacity by the sit/stand option.” (AR 4 20). 5 Plaintiff argues that despite her testimony that her pain post-surgery severely impacted her 6 ability to sit, stand, and walk, the ALJ failed to explain how a “sit/stand every 30 minutes option” 7 in the RFC “accommodates the functionality of a person who is limited to sitting, standing and 8 walking for 15 to 30 minutes maximum at a time, requiring a 10 to 15 minutes break to lie down 9 in between each activity, totaling only 3 hours a day, performing these activities in ‘very short 10 trips,’ spending the remainder of the time lying down for a total of 4 to 5 hours during the day.” 11 (Doc. 18 at 27-28 (record citation omitted)). Plaintiff argues that her testimony was consistent 12 with a September 10, 2020 physical therapy record the ALJ failed to acknowledge. (Id.at 29). To 13 the extent the ALJ rejected Plaintiff’s testimony because she “found the other ‘telehealth’ post- 14 surgical examinations insufficient, because they did not come from an examining physician,” 15 Plaintiff argues the ALJ should have ordered a consultive examination rather than reject her 16 testimony. (Id. at 29-30). 17 Defendant responds “the ALJ appropriately relied upon Plaintiff’s reports of improvement 18 after her surgery, and examination findings including a normal gait and full motor strength in 19 evaluating Plaintiff’s testimony.” (Doc. 20 at 16). While “Plaintiff extensively summarizes her 20 own testimony and allegations,” Defendant asserts her argument amounts to an improper request 21 that the Court reweigh the evidence. (Id.). 22 As Defendant argues, the ALJ sufficiently explained her reasons for discounting 23 Plaintiff’s symptom testimony based on evidence in the record. The Court can readily follow her 24 reasoning and meaningfully review those reasons. See, e.g., Guthrie v. Kijakazi, No. 21-36023, 25 2022 WL 15761380, at *1 (9th Cir. Oct. 28, 2022) (citing Kaufmann v. Kijakazi, 32 F.4th 843, 26 851 (9th Cir. 2022) (stating that the court considers “the ALJ’s full explanation” and the “entire 27 record”)); Mazon v. Comm’r of Soc. Sec., No. 1:22-cv-00342-SAB, 2023 WL 3177797, at *7 1 specific findings followed a conventional organization for the ALJ’s decision writing which is 2 sufficiently clear for judicial review). Specifically, the ALJ’s decision makes clear that she 3 credited Plaintiff’s complaints of pain following her surgery and included the sit/stand limitation 4 to accommodate those complaints, but found that further limitations were not warranted based on 5 the lack of objective evidence to support Plaintiff’s complaints and Plaintiff’s own prior 6 statements to her providers that she was improving following surgery. 7 To the extent Plaintiff argues the ALJ failed to consider a single physical therapy record 8 that supported her testimony, the ALJ was not required to discuss every piece of evidence in 9 rendering her decision. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). 10 While this record may have supported a different conclusion from the ALJ, it is not for this court 11 to “reweigh the evidence or substitute [its] judgment for that of the ALJ.” Ahearn v. Saul, 988 12 F.3d 1111, 1115 (9th Cir. 2021). Rather, “[w]hen the evidence can rationally be interpreted in 13 more than one way, the court must uphold the ALJ’s decision.” Id. at 1115-16 (alterations 14 omitted. 15 Overall, the ALJ credited Plaintiff’s testimony and included the sit/stand limitation, and 16 provided specific, clear, and convincing reasons for rejecting Plaintiff’s testimony that she was 17 more limited in her ability to sit and stand. Substantial evidence supports the ALJ’s decision such 18 that it must be affirmed. 19 IV. ORDER AND RECOMMENDATIONS 20 The Clerk of the Court is DIRECTED to randomly assign a district judge to this action. 21 For the reasons stated above, the undersigned RECOMMENDS that : 22 1. Plaintiff’s Motion for Summary Judgment (Doc. 18) be DENIED; 23 2. The ALJ’s decision be AFFIRMED; 24 3. The Clerk of Court be directed to enter judgment in favor of Defendant and close this 25 case. 26 These findings and recommendations will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days of 1 | with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 2 | and Recommendations.” The parties are advised that failure to file objections within the specified 3 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 4 Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 | IT IS SO ORDERED. ©! Dated: _May 14, 2025 | by 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17