# (SS) Verreault v. Commissioner of Social Security

> District Court, E.D. California · December 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10049481

## Case

- **Court:** District Court, E.D. California
- **Decided:** December 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
2
EASTERN DISTRICT OF CALIFORNIA
3
4
JOHN JOSEPH VERREAULT, No. 1:21-cv-01648-GSA
5
Plaintiff,
6
v. OPINION & ORDER DIRECTING ENTRY
7 OF JUDGMENT IN FAVOR OF
KILOLO KIJAKAZI, acting DEFENDANT COMMISSIONER OF
8 Commissioner of Social Security, SOCIAL SECURITY AND AGAINST
PLAINTIFF
9
Defendant. (Doc. 16, 17)
10

11

12
I. Introduction
13
Plaintiff John Joseph Verreault (“Plaintiff”) seeks judicial review of a final decision of the
14
Commissioner of Social Security (“Commissioner” or “Defendant”) denying his applications for
15
disability insurance benefits and supplemental security income pursuant to Titles II and XVI,
16
respectively, of the Social Security Act. The matter is before the Court on the parties’ briefs which
17
were submitted without oral argument to the United States Magistrate Judge.1 Docs. 16–18. After
18
reviewing the record the Court finds that substantial evidence and applicable law support the ALJ’s
19
decision. Plaintiff’s appeal is therefore denied.
20
II. Factual and Procedural Background2
21
On December 27, 2017 Plaintiff applied for disability insurance benefits and supplemental
22
security income alleging a disability onset date of January 1, 2017 (which was subsequently
23
amended to November 1, 2013). The applications were denied initially on March 13, 2018 and on
24
reconsideration on July 25, 2018. Plaintiff requested a hearing which was held before an
25
Administrative Law Judge (the “ALJ”) on April 1, 2020. AR 42–89. On July 16, 2020 the ALJ
26

27 1 The parties consented to the jurisdiction of a United States Magistrate Judge. See Docs. 8 and 10.
2 The Court has reviewed the relevant portions of the administrative record including the medical, opinion and
28 testimonial evidence about which the parties are well informed, which will not be exhaustively summarized. Relevant
portions will be referenced in the course of the analysis below when relevant to the parties’ arguments.
issued a decision denying Plaintiff’s application. AR 21–41. The Appeals Council denied review
2 on May 5, 2021. AR 15–20. On November 12, 2021, Plaintiff filed a complaint in this Court.

3 III. The Disability Standard

4 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the

5 Commissioner denying a claimant disability benefits. “This court may set aside the

6 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal

7 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180

8 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the

9
record that could lead a reasonable mind to accept a conclusion regarding disability status. See
10
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a
11
preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted).
12
When performing this analysis, the court must “consider the entire record as a whole and
13
may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social
14
Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the
15
evidence could reasonably support two conclusions, the court “may not substitute its judgment for
16
that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066
17
(9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless
18
error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the
19
ultimate non-disability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
20
To qualify for benefits under the Social Security Act, a plaintiff must establish that
21 he or she is unable to engage in substantial gainful activity due to a medically
determinable physical or mental impairment that has lasted or can be expected to
22
last for a continuous period of not less than twelve months. 42 U.S.C. §
23 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . .
his physical or mental impairment or impairments are of such severity that he is not
24 only unable to do his previous work, but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful work which exists
25 in the national economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for him, or whether
26
he would be hired if he applied for work.
27 42 U.S.C. §1382c(a)(3)(B).
28 To achieve uniformity in the decision-making process, the Commissioner has established a
sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)-
2 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the

3 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.

4 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial

5 gainful activity during the period of alleged disability, (2) whether the claimant had medically

6 determinable “severe impairments,” (3) whether these impairments meet or are medically

7 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4)

8 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant

9
work, and (5) whether the claimant had the ability to perform other jobs existing in significant
10
numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears
11
the burden of proof at steps one through four, the burden shifts to the commissioner at step five to
12
prove that Plaintiff can perform other work in the national economy given her RFC, age, education
13
and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014).
14
IV. The ALJ’s Decision
15
At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since
16
his amended alleged disability onset date of November 1, 2013. AR 27. At step two the ALJ found
17
that Plaintiff had the following severe impairments: short bowel syndrome, obesity, and
18
hypomagnesemia. AR 27. The ALJ also found at step two that Plaintiff had the following non-
19
severe impairments: hypotension, anxiety, and depression. AR 27–28. At step three the ALJ found
20
that Plaintiff did not have an impairment or combination thereof that met or medically equaled the
21
severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 28–29.
22
Prior to step four the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and
23
concluded that Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. 416.967(c)
24
except that he could: lift and carry 100 pounds occasionally and 50 pounds frequently;3 sit, stand,
25
and walk 6 out of 8 hours; would need a 10-minute break every two hours which would be
26
accommodated by normal breaks. AR 29–34.
27
3 Which is in fact the lift/carry requirement for heavy work, not medium work, though any error was harmless given
28 the evidence discussed at section V(C) below which suggested the job in fact required only light exertional lifting as
actually performed. 20 C.F.R. 416.967(d).
At step four the ALJ found that Plaintiff could perform his past relevant work in the
2 composite jobs of floor laying and carpet laying as actually and generally performed. AR 34.

3 Accordingly, the ALJ found that Plaintiff was not disabled at any time since his alleged disability

4 onset date of November 1, 2013. AR 34.

5 V. Issues Presented

6 Plaintiff asserts three claims of error: 1) that the ALJ failed to offer clear and convincing

7 reasons for rejecting Plaintiff’s allegations regarding the frequency of his bowel movements; 2)

8 that the ALJ failed to explain his departure from the state agency medical opinions; and, 3) that the

9
ALJ improperly determined that Plaintiff can perform his past relevant work.
10
A. Plaintiff’s Testimony
11
1. Applicable Law
12
13 The ALJ is responsible for determining credibility,4 resolving conflicts in medical
14 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). A
15 claimant’s statements of pain or other symptoms are not conclusive evidence of a physical or mental
16
impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p.
17
An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding
18
subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.
19
2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective
20
21 medical evidence of an impairment that could reasonably be expected to produce some degree of
22 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the
23 claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate the
24
intensity and persistence of [the claimant’s] symptoms to determine the extent to which the
25
26

27 4 Social Security Ruling 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 symptom evaluation is not “an
28 examination of an individual’s character” but an endeavor to “determine how symptoms limit ability to perform work-
related activities.” S.S.R. 16-3p at 1-2.
symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2.
2
An ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and
3
convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16-3p
4
5 at *10. Subjective testimony “cannot be rejected on the sole ground that it is not fully corroborated

6 by objective medical evidence,” but the medical evidence “is still a relevant factor in determining

7 the severity of claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857

8 (9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 404.1529(c)(2)).

9
The ALJ must examine the record as a whole, including objective medical evidence; the
10
claimant’s representations of the intensity, persistence and limiting effects of his symptoms;
11
statements and other information from medical providers and other third parties; and any other
12
13 relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5.
14 2. Analysis
15 Plaintiff has a history of bowel obstruction, surgical bowel resection, ileostomy bag use,
16
and short bowel syndrome. AR 410, 508, 512, 606, 1527, 1883. Although Plaintiff’s chief
17
complaints during the administrative proceedings included fatigue and confusion, his motion for
18
summary judgment is centered around his need for excessive bathroom trips.
19
Plaintiff offered various testimony that his bowel movements ranged from 5 to 25 per day
20
21 during the relevant period, testimony which will be discussed in more detail below. The ALJ
22 acknowledged Plaintiff’s testimony that he “must use the bathroom multiple times per day” (AR
23
30). The ALJ then summarized the objective medical evidence of record over several pages. The
24
ALJ concluded with the common refrain that “the claimant's allegations are not fully consistent
25
with or supported by the medical evidence,” because “the vast majority of medical examinations .
26
. . yielded essentially normal findings.” AR 33–34.
27
28
As Plaintiff emphasizes, it’s not clear what objective findings would have satisfied the ALJ.
2
The allegations regarding his bowel movement frequency are not objectively verifiable in the
3
strictest sense. The records simply reflect what he told his providers who, in turn, made
4
5 corresponding treatment decisions. These included an opioid based anti-diarrheal called Paregoric,

6 and ultimately a medication called Gattex. It cannot be disputed that Plaintiff has an underlying

7 impairment that can cause excessive bowel movement frequency. Further to the point, his ex-wife

8 filled out a third party function report noting frequent bowel movements throughout the day and

9
night. AR 306–07.
10
The objective findings underscored by Defendant and the ALJ were largely peripheral to
11
the issue at bar here, namely bowel movement frequency:
12
13 For example, the ALJ noted Plaintiff’s history of “bowel obstruction status post
hemi colectomy, ileostomy then take down, and short gut syndrome” as well as
14 nephrolithiasis (kidney stones) (AR 30). Plaintiff’s physical examination in October
2017 was within normal limits, including normal range of motion in the upper and
15 lower extremities. He was fully oriented with a normal mood and affect (AR 510).
In September 2017, the claimant reported he was not having abdominal pain,
16
distention, fever or chills. He was getting infusions twice a week for his chronic
17 hypomagnesemia (AR 539). On December 12, 2017, an ultrasound of the abdomen
did not reveal any abnormalities, no hydronephrosis and no shadowing calculi (AR
18 862). By May 2018, it was noted his weight had been stable. He noted improvement
of his G.I. symptoms with medication adjustment (AR 31, citing AR 525). On May
19 28, 2019, the claimant presented for a 2-month follow-up. The claimant reported he
was doing well with his current treatment regarding a short bowel syndrome and he
20
was not having any issues (AR 31, citing 1791-92). At that visit, his doctor noted
21 that Plaintiff “has had a big improvement in the amount of BMs he is having in a
day” (AR 1791).
22
Resp. at 5, Doc. 17.
23
The first sentence quoted above simply recites his surgical history and resultant short bowel
24
25 syndrome. The second sentence discusses physical examination and range of motion findings
26 which relate perhaps to orthopedic complaints, but not to his digestive condition. Equally irrelevant
27
was the discussion of normal orientation, mood, affect, and other components of a mental status
28
examination which the ALJ likely cited in response to his mental health complaints. The December
2017 abdominal ultrasound, lack of hydronephrosis, and lack of shadowing calculi relate to his
2
kidney stones and not to bowel movement frequency.
3
The lack of abdominal pain and distention in September 2017 is more relevant to his
4
5 digestive condition, but not specifically relevant to his alleged bowl movement frequency. It is

6 unclear if there an association between bowel movement frequency and the presence or absence of

7 pain and distention. The same is true of his weight stability. Symptoms and weight stability

8 notwithstanding, he still had an objectively short bowel resulting in bowel movement frequency

9
that increased at least to some extent during the relevant period (though, as will be discussed below,
10
not necessarily increased to a work preclusive extent).
11
The ALJ then cited May 2019 records noting improved bowel movement frequency with
12
13 his new medication, Gattex. AR 1791. This was the most relevant discussion and provided a clear
14 and convincing reason to reject his testimony, at least as to the period following his transition to
15 Gattex in 2019. Although this does not address the bulk of the relevant period, a closer review of
16
the pertinent records (even based on Plaintiff’s own summary thereof) reveals that his testimony
17
and the medical records were not entirely in agreement:
18
Plaintiff argued as follows:
19
The medical evidence corroborated Plaintiff’s allegations that he was having
20
frequent bowel movements. From January 2017 to October 2017, Plaintiff reported
21 having bowel movements every 2 to 4 hours (Tr. 537, 539, 541, 543, 545, 547, 549,
556), but form January 2018 to June 2018, he reported having a bowel movement
22 every 1 to 2 hours (Tr. 824, 827, 830, 833, 836, 1536), and in October 2018, he
reported having as many as 12 to 15 bowel movements per day (Tr. 1527). In
23
January 2019, Plaintiff reported a big improvement on a new medication, but
continued to have 6 bowel movements per day (Tr. 1801).
24

25 And he offers the following summary of the pertinent testimony:

26 Plaintiff testified that, during the relevant period under review, he had 10 or more
bowel movements per day (Tr. 67), and during a normal workday he would need to
27
use the bathroom 7 times for a total of 40 minutes (Tr. 67, 74). Further, Plaintiff
28 testified that when he was taking Paregoric medication, from 2014 to 2018, he was
having bowel movements as frequently as 15 to 25 times per day, and 12 to 14 bowel
movements during the course of an 8-hour period (Tr. 77-78). Plaintiff reported that
2 now, with use of a new medication, his bowel movements were down to 5 to 12 per
day, but he might still have as many as 12 to 14 bowel movements for one week per
3 month (Tr. 83-84).

4 Br. at 5, Doc. 16.

5
Of note at the outset, there appear to be two distinct periods at issue based on his testimony.

6
The periods are demarcated by his January 2019 transition from Paregoric to Gattex. As to the first
7
period while taking Paregoric from 2014 through the end of 2018, despite his contention that the
8
9
records corroborate this testimony he cites no records for the first half of this period from 2014
10 through 2016. He then states that “[f]rom January 2017 to October 2017, Plaintiff reported having
11 bowel movements every 2 to 4 hours (Tr. 537, 539, 541, 543, 545, 547, 549, 556).” Br. at 5. But
12
these records does not support his testimony of 15 to 25 bowel movements per day at intervals
13
every 45 to 75 minutes. Moreover, the bowel movement frequency identified in these records
14
would appear to be accommodated by the normal breaks (10 minutes every 2 hours) as specified in
15
the RFC.
16
17 Next Plaintiff states that “from January 2018 to June 2018, he reported having a bowel
18 movement every 1 to 2 hours (Tr. 824, 827, 830, 833, 836, 1536) and in October 2018, he reported
19 having as many as 12 to 15 bowel movements per day (Tr. 1527).” Id. Although this is more
20
supportive of his testimony, it still does not fully support it. Moreover, at another point in the
21
hearing he was asked (without any time period specified) about his bowel movement frequency
22
during working hours and he indicated it was roughly 7 bowel movements during the hours of 8am
23
to 4pm, and they would collectively span a total of 40 minutes of restroom time throughout the
24
25 workday. AR 67. This would equate to an average of 5 to 6 minutes per bathroom trip. Thus, even
26 if he required a 5 to 6 minute trip every 1 hour, rather than a 10 minute trip every 2 hours (normal
27
breaks as specified in the RFC), his total bathroom time during the work day would not likely
28
exceed normal breaks.
The ALJ’s alternative hypothetical to the VE was imprecise in that he asked the VE whether
2
2 additional breaks of 15 minute duration (on top of the normal breaks) would be work preclusive
3
and the VE answered in the affirmative. But there is no reason based on these identified medical
4
5 records that he would need 2 additional breaks of 15 minute duration in addition to 10 minute

6 breaks every 2 hours. Moreover, some records during the same time period indicate his bowel

7 movements were as few as 5 per day while on Rifixamin, though they regressed upon

8 discontinuation of that medication. AR 524–25. The ALJ did cite this record, albeit for a more

9
generalized proposition that his GI symptoms had improved. AR 31.
10
Importantly, Plaintiff did not testify in so many words that his bowel movement frequency
11
would be an unavoidable impediment to his ability to work, nor did his hearing counsel set out to
12
13 establish that as a fact. Rather, Plaintiff simply described what his bowel movement frequency was
14 a various times during the relevant period. For the period from 2014 to 2018, the testimony does
15 not clearly establish (nor does the medical evidence support) that Plaintiff would unavoidably be
16
in the restroom substantially more frequently, or for longer duration, than what customary
17
workplace tolerances would permit, namely 10 minutes every 2 hours.
18
Moreover, the records beginning one month after he transitioned to a new medication,
19
Gattex, in January 2019 undermine the notion that he required more than normal breaks to use the
20
21 restroom. The records consistently reflect that the transition to Gattex was a success. On January
22 28, 2019, the record reflects he was “doing really well with his new medication” and that “he is
23
now having 6 BMs a day which is a big improvement.” AR 1801. Progress notes two months later
24
on March 27, 2019 reflect “pt is stable on current medications. He feels good and he has no
25
particular complaints today.” AR 1794. Another two months later, progress notes on May 28,
26
2019 similarly reflect “pt reports he is doing really well with his current treatment. He is not having
27
28
any issues at this time. Pt seems to be absorbing well.” AR 1791. Progress notes on July 29, 2019
2
and October 29, 2019 reflect the identical statement. AR 1784, 1787.
3
In short, one month after beginning Gattex Plaintiff reported substantial improvement with
4
5 bowel movement frequency being reduced to 6 times per day. At four additional follow ups

6 throughout 2019 he reported no change and was similarly positive about the impact of the

7 medication. Moreover, his estimate of 6 times per day was not limited to an 8-hour workday. A

8 natural inference to draw from this is that he and his physician were discussing the frequency during

9
a 24-hour period. Moreover, there is little reason to infer that he was omitting nighttime or early
10
morning bowel movements from his report to his physician, or that his physician limited the scope
11
of his question to bowel movement frequency during business hours. With 6 bowel movements in
12
13 a 24-hour period that would amount to one every 4 hours, which is amply accounted for by normal
14 10 minute breaks every 2 hours as specified in the RFC.
15 Based on these records there is no basis to credit Plaintiff’s subsequent testimony at the
16
April 2020 hearing that his bowel movements on Gattex ranged from 5 to 14 per day. Nor was
17
there a basis to credit his testimony about the alleged phenomenon whereby the medication
18
inexplicably had decreased efficacy one week out of the month like clockwork, a phenomenon he
19
said he reported to his physicians but is absent from the records during that period. AR 83-84.
20
21 Overall, the medical records offered some support for his testimony but for only a discrete
22 period of time during 2018 when he reported bowel movement frequency every 1 to 2 hours on
23
several occasions (AR 827, 830, 833, 836, 1536), and reported 12 to 15 bowel movements per day
24
on one occasion (AR 1527). Other records during the same period reflect bowel movements as few
25
as 5 per day while on Rifaximin (AR 524–25), records the ALJ did cite albeit for the more
26
generalized proposition that his GI symptoms improved. AR 31.
27
28
The facts of this case arguably warranted some consideration of whether Plaintiff might
2
have been eligible for a closed period of disability following his surgical procedures, the several
3
months thereafter of stoma bag use, the associated difficulties closing and sealing the stoma bag,
4
5 and the ensuing months during which his providers struggled to manage his care before using

6 Gattex. The Ninth Circuit has recently emphasized the importance of considering how a claimant’s

7 symptoms change over time. See, Smith v. Kijakazi, 14 F.4th 1108, 1116 (9th Cir. 2021). (finding

8 the ALJ “erred by seeking only to reach a single disability determination for the entire multi-year

9
period, thereby failing to consider whether Smith was disabled for only a qualifying, early portion
10
of that time.”). Id.
11
Here however, Plaintiff did not explicitly advocate for a closed period of disability, and
12
13 doing so would have required a more thorough and persuasive parsing of the 2,000 page record
14 (especially as to the period from 2014 to 2018 before his switch to Gattex). That is particularly true
15 given that counsel’s focus at the administrative hearing (not the same counsel representing Plaintiff
16
here) was primarily on Plaintiff’s fatigue and mental confusion, not his bowel movement frequency.
17
See AR 51 (in which counsel identified fatigue, lack of endurance, and confusion as primary
18
concerns, and bowel movement frequency “to a lesser extent.”).
19
Finally, though the ALJ’s discussion of Plaintiff’s bowel movement frequency was
20
21 admittedly limited, the ALJ’s rejection of his testimony in general was also buttressed by his
22 activities:
23
August 2016 notes revealed the claimant was feeling better after his kidney stone
surgery. He was planning on taking a road trip to Washington state. He had recently
24
been enjoying barbecuing on his new grill (Exhibit 14F/8). He noted he enjoyed
25 fishing and taking his boat out (Exhibit 14F/10). In September 2016, he noted plans
to take a road trip to the beach from Wednesday through Friday (Exhibit 14F/13).
26 During this time the claimant reported his desire to stop gambling several times
(Exhibit 14F/20). He noted he began attending church in January 2017 (Exhibit
27
14F/27). Issues with gambling were noted (Exhibit 14F/29). In February 2017 the
28
claimant reported he had been working and was feeling pretty good (Exhibit
2 14F/30). He noted he had recently split a lot of wood, was doing some gardening,
and was keeping himself busy and occupied (Exhibit 14F/32).
3
An ALJ can rely on a claimant’s daily activities as a basis for discrediting a claimant’s
4
5 testimony if (1) the daily activities contradict the claimant’s other testimony; or (2) “a claimant is

6 able to spend a substantial part of [her] day engaged in pursuits involving the performance of

7 physical functions that are transferable to a work setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th

8 Cir. 2007).

9
Plaintiff disputes the ALJ’s reliance on his activities arguing they could be paused or
10
discontinued as needed for bathroom use which cannot be said of competitive employment. The
11
point is well taken, as the activities quoted above do not directly contradict his testimony.
12
13 Nevertheless, at least some of the identified activities (such as boating) are in tension with the
14 notion that he is in the bathroom hourly. The ALJ was not unjustified in citing the same in support
15 of the RFC which limited plaintiff only to normal breaks. See Valentine v. Commissioner Social
16
Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (finding the ALJ satisfied the “clear and convincing”
17
standard for an adverse credibility determination where claimant engaged in “gardening and
18
community activities . . . evidence [which] did not suggest Valentine could return to his old job,”
19
but “did suggest that Valentine’s later claims about the severity of his limitations were
20
21 exaggerated.”).
22 Thus, the ALJ committed no harmful error with respect to Plaintiff’s testimony regarding
23
the frequency of his bowel movements.
24
B. The State Agency Doctors’ Opinions
25
1. Applicable Law
26
Before proceeding to step four, the ALJ must first determine the claimant’s residual
27
28 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2
(C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations”
2
and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1),
3
416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are
4
5 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p.

6 A determination of residual functional capacity is not a medical opinion, but a legal decision

7 that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC is not a

8 medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t is

9
the responsibility of the ALJ, not the claimant’s physician, to determine residual functional
10
capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so, the ALJ must
11
determine credibility, resolve conflicts in medical testimony and resolve evidentiary ambiguities.
12
13 Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995).
14 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record
15 such as medical records, lay evidence and the effects of symptoms, including pain, that are
16
reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also
17
20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical
18
and other evidence). “The ALJ can meet this burden by setting out a detailed and thorough
19
summary of the facts and conflicting evidence, stating his interpretation thereof, and making
20
21 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799
22 F.2d 1403, 1408 (9th Cir. 1986)). The RFC need not mirror a particular opinion; it is an assessment
23
formulated by the ALJ based on all relevant evidence. See 20 C.F.R. §§ 404.1545(a)(3).
24
For applications filed on or after March 27, 2017, the new regulations eliminate a hierarchy
25
of medical opinions, and provide that “[w]e will not defer or give any specific evidentiary weight,
26
including controlling weight, to any medical opinion(s) or prior administrative medical finding(s),
27
28 including those from your medical sources.” 20 C.F.R. § 404.1520c(a). Rather, when evaluating
any medical opinion, the regulations provide that the ALJ will consider the factors of supportability,
2
consistency, treatment relationship, specialization, and other factors. 20 C.F.R. § 404.1520c(c).
3
Supportability and consistency are the two most important factors and the agency will articulate
4
5 how the factors of supportability and consistency are considered. Id.

6 On April 22, 2022, the Ninth Circuit addressed whether the specific and legitimate

7 reasoning standard is consistent with the revised regulations, stating as follows:

8 The revised social security regulations are clearly irreconcilable with our caselaw
9
according special deference to the opinions of treating and examining physicians on
account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) (“We
10 will not defer or give any specific evidentiary weight, including controlling weight,
to any medical opinion(s) ..., including those from your medical sources.”). Our
11 requirement that ALJs provide “specific and legitimate reasons” for rejecting a
treating or examining doctor's opinion, which stems from the special weight given
12
to such opinions, see Murray, 722 F.2d at 501–02, is likewise incompatible with the
13 revised regulations. Insisting that ALJs provide a more robust explanation when
discrediting evidence from certain sources necessarily favors the evidence from
14 those sources—contrary to the revised regulations.

15 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022)

16
2. Analysis
17
The state agency disability determination service (DDS) physicians (Drs. Dale and
18
Williams) reviewed Plaintiff’s medical file at the initial and reconsideration levels, respectively.
19
Dr. Dale opined, in relevant part, that Plaintiff “needs to be close to a toilet.” AR 100. Dr. Williams
20
21 opined, in relevant part, that Plaintiff “should have routine access to restroom.” AR 130.
22 “If the RFC assessment conflicts with an opinion from a medical source, the adjudicator
23
must explain why the opinion was not adopted.” SSR 96-8p. Further, “[a]n ALJ may reject the
24
opinion of nonexamining physicians so long as the ALJ references specific evidence in the medical
25
record’ that supports doing so”) (internal citation omitted). Burkett v. Saul, 806 Fed. Appx. 509,
26
511 (9th Cir. Mar. 6, 2020).
27
28 Plaintiff contends the ALJ erred insofar as the ALJ purported to find these opinions “highly
persuasive,” and largely incorporated the same into the RFC, yet inexplicably omitted the
2
restrictions concerning physical proximity and routine access to the restroom. Plaintiff contends
3
the error is harmful as the ALJ also omitted these restrictions from her hypotheticals to the VE, and
4
5 that the VE’s testimony therefore had no evidentiary value as the hypotheticals did not encapsulate

6 all of Plaintiff’s limitations. Br. at 8–9, Doc. 16.

7 Defendant counters that the RFC is an administrative finding reserved for the

8 Commissioner, not a medical opinion, and that the RFC need not mirror any medical opinion but

9
is formulated based on all the evidence. See 20 C.F.R. § 404.1545(a); 20 C.F.R. § 404.1546(c).
10
Defendant further contends that the restrictions of proximity to a restroom and routine access
11
thereto were sufficiently encapsulated by the RFC here which accounted for normal breaks of 10
12
13 minutes every two hours. Resp. at 8–10, Doc. 17. Plaintiff replies that those are simply normal
14 breaks given to any employee, which in no way accommodates his increased need for bathroom
15 breaks due to short bowel syndrome. Reply at 1–2, Doc. 18.
16
Starting with Dr. Williams’ opinion, “routine access” is a non-specific restriction and
17
Plaintiff posits no theory as to how the ALJ ought to have incorporated the same into the RFC,or
18
posed it into a hypothetical to the VE in concrete terms. Second, to the extent “routine access” was
19
intended to mean more than normal breaks of 10 minutes every 2 hours, such a restriction is not
20
21 supported by the medical evidence for the same reasons explained above. Third, Plaintiff overlooks
22 the second sentence in Dr. Williams’ opinion immediately following the statement concerning
23
“routine access.” The full quote reads as follows: “should have routine access to a restroom. Cl.
24
could accommodate any need to use the restroom during routine breaks/lunch during 8 hour
25
workday.” AR 131 (emphasis added). The italicized portion strongly suggests Dr. Williams opined
26
that normal breaks would indeed accommodate Plaintiff’s need to use the restroom. Although this
27
28 interpretation renders the first sentence concerning “routine access” superfluous, it is not clear how
else one should interpret the italicized portion of his statement.
2
As for Dr. Dale’s restriction that Plaintiff “needs to be close to toilet,” that statement is
3
equally ambiguous as it begs an obvious question, namely: how close does he need to be? The
4
5 ALJ’s determination was based on a finding at step four that Plaintiff could perform past relevant

6 work as a floor/carpet layer. There is little justification to conclude that close proximity to a toilet

7 would be an obstacle, or how the VE’s expertise would be brought to bear on the issue had the ALJ

8 posed that restriction to the VE verbatim. There is also no evidence (testimonial or otherwise)

9
regarding how urgently or unpredictably the need to use the restroom arises for Plaintiff such that
10
physical proximity would be any more of an issue for him that it would be for any other employee
11
without such an impairment. Thus, the court finds that the ALJ committed no error with respect to
12
13 the opinions of Drs. Dale and Williams.
14 C. Plaintiff’s Ability to Meet the Functional Demands of His Past Job
15 1. Applicable Law
16
A claimant is “not disabled” if she retains the residual functional capacity (RFC) to perform
17
either (1) the actual functional demands and job duties of a particular past relevant job, or (2) the
18
functional demands and job duties of the occupation as generally required by employers throughout
19
the national economy. See SSR 82-61.
20
21 According to SSR 82-61, a composite job is one that has “significant elements of two or
22 more occupations” and has “no counterpart in the DOT.” SSR 82-61, available at 1982 WL 31387,
23
at *2. Because a composite job does not have a DOT counterpart, a finding of non-disability at
24
step four cannot be predicated on a finding that Plaintiff could perform past relevant composite jobs
25
as generally performed (the second avenue identified in SSR 82-61). (POMS) DI 25005.020(B).
26
Rather, he must be able to perform the composite work as actually performed.
27
28 2. Analysis
According to the VE Plaintiff’s past relevant work comprised the composite jobs of floor
2
layer and carpet layer. AR 86. The former was at the medium exertional level as generally
3
performed (frequently lift 25 and occasionally 50lbs) and the latter was at the heavy exertional level
4
5 as generally performed (frequently lift 50 and occasionally 100 lbs). Id. The VE testified that a

6 hypothetical individual with Plaintiff’s exertional limitations could perform the jobs. Id.

7 Plaintiff argues that the ALJ erred, however, because his past relevant work as actually

8 performed required exertional capacity even higher than heavy. In support he cites a work history

9
report stating that he would have to lift 100 pounds or more. AR 318. He also relies on testimony
10
at the hearing that he used to lift and carry about 200 to 250 pounds and more recently, since 2003,
11
he was lifting and carrying 80 pounds on a regular basis. AR 56.
12
13 Defendant contends this evidence is selectively picked as there is other evidence in the
14 record that his job never required lifting more than 10 pounds. AR 268. Defendant also cites his
15 testimony that he was actually performing his previous job on a part-time basis as recently as a few
16
months prior to the administrative hearing and only needed to lift or carry 15 or 20 pounds. AR
17
54-55, 63-64. In reply, Plaintiff simply states that he stands on the merits of his original argument.
18
However, the records Defendant cites have a potential alternative explanation. Plaintiff
19
testified that more recently he was only doing odd jobs of 20 to 30 minute duration which were not
20
21 strenuous. AR 55, 72. These odd jobs ostensibly required less flooring material than would be
22 required if he was doing a full day job or multi day job. In other words, less time spent on the job
23
and less square footage of flooring needing repaired might logically mean that less material was
24
needed to repair it and thus less weight had to be carried overall. Then again, even when he was
25
carrying 80 to 250 pounds of flooring material and tools earlier in his career, perhaps he always
26
had the option to carry the material in smaller batches of 15 to 20 pounds, consistent with the
27
28 maximum weight he was lifting when working part time. When he was younger and perhaps more
able bodied, maybe for efficiencies sake he simply chose to lift heavier weight than was strictly
2
necessary. If so, then all of the evidence cited by the parties is potentially valid, and the two
3
alternative explanations as to the weight lifting requirement of Plaintiff’s part time work are not
4
5 inconsistent. However, hearing counsel did not attempt to inquire further into this issue.

6 In any event, both parties appropriately cited records that appear to support their view, and

7 the ALJ admittedly did not cite all relevant records on the issue or address the issue significantly.

8 But it is clear that the record equally supports the parties’ two differing conclusions as to the weight

9
lifting requirement of his past relevant composite work as actually performed. Here, there is no
10
basis to choose one conclusion over the other. In such instances, affirmance is the appropriate
11
outcome. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted) (noting that
12
13 if the evidence could reasonably support two conclusions, the court “may not substitute its
14 judgment for that of the Commissioner” and must affirm the decision). The ALJ committed no
15 error in concluding Plaintiff was capable of performing his past relevant composite work as actually
16
performed.
17
VI. Order
18
For the reasons stated above, the Court finds that substantial evidence and applicable law
19
support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal from
20
21 the administrative decision of the Commissioner of Social Security is denied. The Clerk of Court
22 is directed to enter judgment in favor of Defendant Kilolo Kijakazi, acting Commissioner of Social
23
Security, and against Plaintiff John Joseph Verreault.
24

25
IT IS SO ORDERED.
26
Dated: December 29, 2022 /s/ Gary S. Austin
27
UNITED STATES MAGISTRATE JUDGE
28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10049481. Public record. Not legal advice.