Zoila L. G. C. v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION

12 ZOILA L. G. C., No. 2:25-cv-04945-BFM

13 Plaintiff, MEMORANDUM OPINION 14 v. A ND ORDER

15 COMMISSIONER OF SOCIAL SECURITY, 16 Defendant. 17

18 I. PROCEDURAL HISTORY 19 On October 12, 2017, Plaintiff Zoila L. G. C.1 applied for Supplemental 20 Security Income, alleging disability with an onset date of April 7, 2017. 21 (Administrative Record (“AR”) 627-36, 654.) Plaintiff’s application was denied 22 at the initial level of review and on reconsideration, so she requested a hearing 23 before an Administrative Law Judge. (AR 112-37, 187-89.) 24 In May 2022, an ALJ held a hearing and heard from Plaintiff, a vocational 25 expert, and a medical expert. (AR 80-111.) The ALJ thereafter issued an 26 27 1 In the interest of privacy, this Memorandum Opinion and Order uses only 28 the first name and last initial of the non-governmental party in this case. 1 unfavorable decision, finding at step two of the disability analysis that Plaintiff 2 did not have any severe medically determinable impairments. (AR 144-52.) On 3 review, the Appeals Council vacated the ALJ’s decision and remanded for 4 consideration of evidence submitted after the ALJ’s decision. (AR 162-64.) 5 On May 15, 2024, the same ALJ held another hearing and heard from 6 Plaintiff, a vocational expert, and a medical expert. (AR 46-79.) Later that 7 month, the ALJ issued a second unfavorable decision. (AR 22-35.) The ALJ 8 found at step two that Plaintiff did not have any conditions that met the 9 definition of a severe impairment before October 25, 2018. (AR 25.) As of October 10 25, 2018, Plaintiff did have severe impairments: fibromyalgia, medial meniscus 11 tears in both knees, and osteoarthritis in both knees. (AR 25-28.) The ALJ found, 12 notwithstanding these impairments, that Plaintiff retained a residual function 13 capacity for a range of light work with limitations. Among other limitations, the 14 ALJ found Plaintiff: 15 can sit for a total of four to five hours in an eight hour workday; she 16 . . . can stand for one hour at a time for a total of one to two hours 17 in an eight-hour workday; [and] she can walk for 30 to 60 minutes 18 at a time for a total of one to two hours in an eight-hour workday. 19 (AR 29.) Related to that conclusion, the ALJ found persuasive the opinion of Dr. 20 Mark Stevens, who testified that, in an eight-hour workday, Plaintiff could “sit 21 for four to five hours, stand two, walk one to two.” (AR 31 (citing AR 51-52).) The 22 ALJ rejected several medical opinions finding that greater sitting, standing, and 23 walking limitations would be appropriate. (AR 31-32.) 24 25 26 2 A five-step evaluation process governs whether a claimant is disabled. 20 27 C.F.R. § 416.920(a)-(g)(1). Only the steps relevant to the issues raised are discussed herein. 28 1 The ALJ found at steps four and five that Plaintiff could not perform any 2 past relevant work, but there were other jobs that existed in significant numbers 3 in the national economy that she could perform. (AR 33-35 (adopting vocational 4 expert testimony at AR 63-78).) The ALJ therefore found Plaintiff not disabled. 5 The Appeals Council denied Plaintiff’s request for review of the ALJ 6 decision, making the ALJ’s May 2024 decision final. (AR 1-3.) Dissatisfied with 7 the agency’s resolution of her claim, Plaintiff filed a Complaint in this Court. 8 For the reasons set forth below, the Court affirms the ALJ’s May 2024 decision. 9 II. STANDARD OF REVIEW 10 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision 11 to deny benefits to determine if: (1) the Commissioner’s findings are supported 12 by substantial evidence; and (2) the Commissioner used correct legal standards. 13 See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); 14 Brewes v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 15 “Substantial evidence. . . is ‘more than a mere scintilla.’ It means—and means 16 only—‘such relevant evidence as a reasonable mind might accept as adequate to 17 support a conclusion.’” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (citations 18 omitted); Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014). 19 To determine whether substantial evidence supports a finding, the reviewing 20 court “must review the administrative record as a whole, weighing both the 21 evidence that supports and the evidence that detracts from the Commissioner’s 22 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the 23 evidence can reasonably support either affirming or reversing,” the Court 24 should not substitute its judgment for that of the Commissioner. Id. at 720-21. 25 III. DISCUSSION 26 In this Court, Plaintiff challenges only a narrow aspect of the ALJ’s RFC 27 determination. She argues that the ALJ did not consider whether Plaintiff could 28 perform full-time work—eight hours a day, five days a week—on a regular basis. 1 (See ECF 9 (“Pl. Br.”) at 8-11.) Plaintiff notes that the ALJ stated the periods 2 Plaintiff could work in different positions as ranges—i.e., that she could sit for 3 four to five hours. In Plaintiff’s view, these ranges signified that the ALJ found 4 her ability to sit, stand, and walk would be different on different days. She goes 5 further, and states that such a finding is consistent with her fibromyalgia 6 diagnosis, a condition that waxes and wanes. (See Pl. Br. at 10-11 (citing Social 7 Security Ruling (“SSR”) 12-2p, 2012 WL 3104869, at *6 (noting that 8 fibromyalgia symptoms can wax and wane and a person with fibromyalgia may 9 have “bad days and good days”).) When Plaintiff is having bad days, she might 10 be at the lower end of each of the ranges found by the ALJ—that is, only able to 11 sit four hours, stand for one, and walk for one—and that that would leave her 12 unable to work a full eight-hour workday some of the time. (Pl. Br. at 11.) In 13 Plaintiff’s view, the ALJ’s failure to consider that anomaly warrants remand: an 14 RFC assessment is meant to capture what a claim can do on a “regular and 15 continuing basis,” meaning eight hours a day, five days a week, or an 16 “equivalent” schedule.” (Pl. Br. at 11 (citing SSR 96-8p, 1996 WL 374184, at *1). 17 In Plaintiff’s view, the ALJ failed to do so. (ECF 15 (“Pl. Reply”) at 2-4.) 18 Defendant argues that Plaintiff forfeited this challenge by failing to raise 19 it before the agency, and in the alternative, that Plaintiff’s argument fails on 20 the merits because an RFC is the most a claimant can do, and in this case the 21 most Plaintiff can do in each position (sitting/standing/walking) exceeds eight 22 hours. (ECF 14 (“Def. Br.”) at 3-8 (citing 20 C.F.R. § 416.945(a).) 23 For the reasons set forth below, the Court declines to find Plaintiff’s claim 24 forfeited, but affirms the ALJ’s decision on the merits. 25 26 27 28 1 A. Forfeiture 2 Plaintiff did not raise the issue presented here to the ALJ. Counsel did 3 not ask the medical expert who testified at the hearing whether the 4 sitting/standing/walking limits he found would mean that Plaintiff would be 5 able to work less than eight hours some days. (AR 50-58.) Counsel did not speak 6 up when the ALJ posted hypothetical questions to the vocational expert using 7 these same limits. (AR 63-78.) And Plaintiff’s counsel did not raise this issue 8 either in her post-hearing brief to the ALJ (AR 747-78) or in a brief to the 9 Appeals Council (AR 783-84). 10 Plaintiff admits she didn’t raise the issue at the hearing, and states that 11 there was no reason to do so because she could have reasonably believed the 12 ALJ’s findings “might prove favorable to her.” (See Pl. Reply at 3.) That point is 13 not well taken. Once the medical expert offered his opinion and the ALJ 14 incorporated that opinion into the hypothetical posed to the vocational expert, 15 it would have been prudent for counsel to speak up. Had counsel done so, 16 Plaintiff could have clarified the question on the spot. The question, though, is 17 not whether it would have been prudent to seek clarification, but whether 18 Plaintiff is precluded from litigating her claim here because she failed to raise 19 the question below. The Court does not believe forfeiture is appropriate here. 20 Defendant cites Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999), in support 21 of his argument that Plaintiff forfeited her claim by failing to raise it at the 22 administrative hearing. (Def. Br. at 3-5.) There is much water under the bridge, 23 however, since Meanel was decided. See, e.g., Sims v. Apfel, 530 U.S. 103, 110- 24

25 3 The parties frame this as a waiver argument, but the Court uses forfeiture, 26 in line with Ninth Circuit caselaw holding that forfeiture describes the case when a litigant fails to timely assert a claim, and that waiver occurs only when 27 a litigant intentionally relinquishes a known claim. United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en banc). Plaintiff did nothing to affirmatively 28 waive review of the claim she makes here; at most, she forfeited such review. 1 12 (2000) (finding that, because Social Security proceedings are inquisitorial 2 and not adversarial, and because the ALJ has a duty to investigate facts and 3 develop arguments, issues not raised before the Appeals Council are nonetheless 4 preserved for judicial review); Carr v. Saul, 593 U.S. 83, 89-96 (2021) (holding 5 that, while ALJ proceedings are more adversarial than Appeals Council review, 6 not every objection omitted before the ALJ is barred for federal court review). 7 In a recent decision, the Ninth Circuit synthesized Sims and Carr and set 8 out a two-part test for determining whether “to impose a judicially created issue- 9 exhaustion requirement.” Obrien v. Bisignano, 142 F.4th 687, 697-98 (9th Cir. 10 2025) (quoting Carr, 593 U.S. at 88, internal quotation marks omitted). Under 11 Obrien, a court (1) “must first identify the relevant ‘issues’ raised by [a 12 claimant],” then (2) “determine whether, notwithstanding the generally 13 informal and inquisitorial nature of ALJ proceedings, those issues are the sort 14 that claimants are ‘expected to develop’ in those proceedings, such that 15 requiring issue exhaustion is appropriate.’” Id. (quoting Carr, 593 U.S. at 89 16 n.3). The issue in Obrien was whether the ALJ properly concluded that the 17 claimant’s prior employment qualified as “past relevant work” under applicable 18 regulations. The Ninth Circuit found that issue was not forfeited by the failure 19 to raise it before the agency. Whether a job is past relevant work is “not some 20 extraneous or additional issue that, if not specifically called to the ALJ’s 21 attention, the ALJ would have no occasion to decide.” Id. at 698. Nor did the 22 issue concern the presentation of new evidence or information that the claimant 23 bore “some measure of responsibility to develop.” Id. at 699 (citation and 24 internal quotations omitted). Rather, deciding whether a claimant’s prior 25 employment meets the standard for “prior relevant work” is an issue that is 26 “inherent in the five-step process,” and thus related “more to the inquisitorial 27 aspects of those proceedings.” Id. 28 1 Here, the Court reaches the same conclusion. A claimant bears the burden 2 of proving disability, Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996), but 3 the ALJ “always has a ‘special duty to fully and fairly develop the record and to 4 assure that the claimant’s interests are considered. . . even when the claimant 5 is represented by counsel.’” Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) 6 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). An ALJ must 7 “scrupulously and conscientiously probe into, inquire of, and explore for all the 8 relevant facts.” Celaya, 332 F.3d at 1183 (quoting Higbee v. Sullivan, 975 F.2d 9 558, 561 (9th Cir. 1992)). As relevant to the issue presented here, the 10 persuasiveness of a medical opinion, how a persuasive medical opinion should 11 be reflected in the RFC, and whether an RFC will preclude regular employment 12 are each standard pieces of the sequential analysis the ALJ must perform in 13 every case. As such, any issues with the medical expert’s testimony and what it 14 meant for the RFC, or whether the assessed RFC would have precluded 15 Plaintiff’s employment, fall squarely under the inquisitorial aspects of the 16 hearing. The Court thus declines to find Plaintiff forfeited her ability to raise 17 this issue in these proceedings. 18 B. Merits 19 On the merits, however, Plaintiff’s claim fails. Plaintiff’s argument flows 20 from a faulty premise: that the ALJ stated the RFC’s sitting, standing, and 21 walking limitations as ranges to account for the waxing and waning of 22 fibromyalgia symptoms. (Pl. Br. at 10-11; Pl. Reply at 4.) The ALJ’s decision 23 suggests otherwise. The ALJ almost entirely adopted the limitations offered in 24 Dr. Stevens’s opinion. (Compare AR 29 (ALJ’s RFC finding Plaintiff could sit for 25 a total of four to five hours in an eight-hour workday; stand for a total of one to 26 two hours in an eight-hour workday; and walk for a total of one to two hours in 27 an eight-hour workday) with AR 51 (Dr. Stevens’s testimony that Plaintiff could 28 sit for a total of four to five hours, stand two hours, and walk up to one to two 1 hours in an eight-hour day).) Dr. Stevens’s proposed limitations were expressly 2 tied to Plaintiff’s knee problems; he acknowledged he did not treat fibromyalgia 3 in his practice. (AR 51.) On top of that, the ALJ rejected each of the medical 4 opinions that proposed greater standing, sitting, and walking limitations based 5 on Plaintiff’s other conditions. (AR 31 (rejecting as unpersuasive Dr. Rodriguez’s 6 opinion that Plaintiff could sit, stand, and walk for only two hours of an eight- 7 hour day based on her migraines and arthritis); AR 32 (rejecting Dr. Eskenazi’s 8 opinion that Plaintiff could only sit for thirty minutes at a time or stand for ten 9 minutes at a time); AR 32 (discounting as unpersuasive Dr. Lim’s opinion that 10 Plaintiff could sit for less than two hours and stand/walk for less than two hours 11 in an eight-hour day). Moreover, the ALJ was also dismissive of the evidence 12 that suggested Plaintiff’s fibromyalgia would affect her ability to work. (See AR 13 30-31 (noting that the most recently submitted progress notes demonstrated 14 that Plaintiff’s fibromyalgia improved with medication); AR 31 (rejecting D.O. 15 Miller’s opinion concerning Plaintiff’s fibromyalgia as inconsistent with more 16 recent evidence of improvement).) Taking all of this together, there is simply no 17 reason to read the decision as suggesting that the ALJ believed Plaintiff’s 18 fibromyalgia would cause her to be at the bottom of each of the three ranges 19 some days. 20 The far more natural reading is that the ALJ believed Plaintiff would 21 patch together a combination of standing, sitting and walking over the course of 22 an eight-hour workday—and that for each of the three jobs described at step 23 five, Plaintiff would be able to do so within the ranges assessed in Plaintiff’s 24 RFC. The RFC reflects the ALJ’s awareness that he had to consider Plaintiff’s 25 ability to work an eight-hour workday. (AR 29 (assessing hours Plaintiff could 26 work in different positions “in an eight-hour workday”).) The ALJ credited Dr. 27 Stevens’s testimony that Plaintiff would be able to sit for four to five hours, 28 stand for two hours, and walk for one to two hours “in an eight-hour workday.” 1 || (AR 81.) The vocational expert’s testimony also made clear that she was basing 2 || her testimony on whether a person with Plaintiff's RFC could perform full-time 3 || employment. (AR 69 (confirming that the statistics provided were for full-time 4 || employment).) In other words, all relevant individuals were focused on 5 || Plaintiffs ability to work an eight-hour workday. 6 As such, there is no reason to think that the ALJ actually concluded that 7 || Plaintiff would be unable to work an eight-hour day in any combination of 8 || positions, but nevertheless found Plaintiff not disabled. See Thomas v. Astrue, 9 || 2012 WL 5363448, at *7 (D. Md. Oct. 26, 2012) (rejecting similar argument 10 || because a residual functional capacity is the most a claimant can do despite her 11 |} limitations, and taking the maximum of each range in each position, the 12 || claimant could work for eight hours a day). 13 For the foregoing reasons, the Court finds no basis to remand this matter 14 || based on the ALJ’s RFC determination. 15 IV. ORDER 16 For all the foregoing reasons, it is ordered that the decision of the 17 || Commissioner is affirmed. Judgment shall be entered accordingly. 18 19 TEN f 20 || DATED: March 38, 2026 BRIANNA FULLER MIRCHEFF UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28