# (SS) Salas Valenzuela v. Commissioner of Social Security

> District Court, E.D. California · February 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10059538

## Case

- **Court:** District Court, E.D. California
- **Decided:** February 27, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10059538

## Opinion text

1

2

3

4

5

6

7

8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10

11 MARIA CANDELARIA SALAS Case No. 1:22-cv-01361-SAB
VALENZUELA,
12 ORDER DENYING PLAINTIFF’S SOCIAL
Plaintiff, SECURITY APPEAL AND DIRECTING
13 CLERK OF THE COURT TO ENTER
v. JUDGMENT ON BEHALF OF DEFENDANT
14 COMMISSIONER OF SOCIAL SECURITY
COMMISSIONER OF SOCIAL AND CLOSE THIS ACTION
15 SECURITY,
(ECF Nos. 18, 20, 21)
16 Defendant.

17
18 I.
19 INTRODUCTION
20 Maria Candelaria Salas Valenzuela (“Plaintiff”) seeks judicial review of a final decision of
21 the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for
22 disability benefits pursuant to the Social Security Act. The matter is currently before the Court on
23 the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A.
24 Boone.1
25 Plaintiff requests the decision of Commissioner be vacated and the case be remanded for further
26 proceedings, arguing the Administrative Law Judge’s opinion is not supported by substantial evidence,
27
1 The parties have consented to the jurisdiction of the United States Magistrate Judge and this action has been
1 and she committed legal error in evaluating the opinion of the agency’s consultative psychologist, Jerry
2 Livesay, Ph.D. For the reasons explained herein, Plaintiff’s Social Security appeal shall be denied.
3 II.
4 BACKGROUND
5 A. Procedural History
6 Plaintiff previously filed an application for a period of disability and disability insurance
7 benefits and a Title XVI application for supplemental security income that were denied by
8 Administrative Law Judge Sharon Madsen on January 24, 2018. (AR 80-93.)
9 In the current matter, Plaintiff protectively filed an application for a period of disability and
10 disability insurance benefits and a Title XVI application for supplemental security income on
11 January 30, 2020. (AR 134, 135.) Plaintiff’s applications were initially denied on October 20, 2020,
12 and denied upon reconsideration on January 19, 2021. (AR 180-83, 185-88, 192-96, 198-202.)
13 Plaintiff requested and received a hearing before Administrative Law Judge Yvette N. Diamond
14 (“the ALJ”). Plaintiff appeared with counsel for a telephonic hearing on September 20, 2021. (AR
15 43-78.) On October 28, 2021, the ALJ issued a decision finding that Plaintiff was not disabled. (AR
16 19-37.) On September 1, 2022, the Appeals Council denied Plaintiff’s request for review. (AR 1-
17 3.)
18 B. The ALJ’s Findings of Fact and Conclusions of Law
19 The ALJ made the following findings of fact and conclusions of law as of the date of the
20 decision, October 28, 2021:
21 1. Plaintiff meets the insured status requirements of the Social Security Act through
22 December 31, 2019.
23 2. Plaintiff has not engaged in substantial gainful activity since the alleged onset date of
24 April 30, 2014.
25 3. Plaintiff has the following severe impairments: degenerative disc disease; radiculopathy;
26 right shoulder osteoarthritis; carpal tunnel syndrome; chronic pain syndrome; migraines;
27 s/p brain aneurysm; hypertension; hyperlipidemia; diabetes mellitus; obesity; gastro-
1 4. Plaintiff does not have an impairment or combination of impairments that meets or
2 medically equals the severity of one of the listed impairments.
3 5. Plaintiff is unable to perform any past relevant work.
4 6. Plaintiff was born on February 2, 1969, and was 45 years old which is defined as an
5 individual approaching advanced age on the alleged disability onset date.
6 7. Plaintiff has at least a high school education.
7 8. Transferability of job skills is not material to the determination of disability because using
8 the Medical-Vocational Rules as a framework supports a finding that the claimant is “not
9 disabled” whether or not she has transferable job skills.
10 9. Considering Plaintiff’s age, education, work experience, and residual functional capacity,
11 there are jobs that exist in significant numbers in the national economy that Plaintiff can
12 perform.
13 10. Plaintiff has not been under a disability, as defined in the Social Security Act, from April
14 30, 2014, through the date of decision.
15 (AR 25-36.)
16 III.
17 LEGAL STANDARD
18 A. The Disability Standard
19 To qualify for disability insurance benefits under the Social Security Act, a claimant must
20 show she is unable “to engage in any substantial gainful activity by reason of any medically
21 determinable physical or mental impairment2 which can be expected to result in death or which has
22 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
23 423(d)(1)(A). The Social Security Regulations set out a five-step sequential evaluation process to
24 be used in determining if a claimant is disabled. 20 C.F.R. § 404.1520;3 Batson v. Comm’r of Soc.
25
2 A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities
26
that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3).

27 3 The regulations which apply to disability insurance benefits, 20 C.F.R. §§ 404.1501 et seq., and the regulations which
apply to SSI benefits, 20 C.F.R. §§ 416.901 et seq., are generally the same for both types of benefits.
1 Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in the sequential evaluation in
2 assessing whether the claimant is disabled are:
3 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the
claimant is not disabled. If not, proceed to step two.
4
Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or her
5 ability to work? If so, proceed to step three. If not, the claimant is not disabled.
6 Step three: Does the claimant’s impairment, or combination of impairments, meet
or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the
7 claimant is disabled. If not, proceed to step four.
8 Step four: Does the claimant possess the residual functional capacity (“RFC”) to
perform his or her past relevant work? If so, the claimant is not disabled. If not,
9 proceed to step five.
10 Step five: Does the claimant’s RFC, when considered with the claimant’s age,
education, and work experience, allow him or her to adjust to other work that exists
11 in significant numbers in the national economy? If so, the claimant is not disabled.
If not, the claimant is disabled.
12
13 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is
14 on the claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). A
15 claimant establishes a prima facie case of qualifying disability once she has carried the burden of
16 proof from step one through step four.
17 Before making the step four determination, the ALJ first must determine the claimant’s RFC.
18 20 C.F.R. § 416.920(e); Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2
19 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [her] limitations” and
20 represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1);
21 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are
22 not severe. 20 C.F.R. §§ 416.920(e); 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p, available
23 at 1996 WL 374184 (Jul. 2, 1996).4 A determination of RFC is not a medical opinion, but a legal
24 decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC is
25 not a medical opinion); 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t
26
4 SSRs are “final opinions and orders and statements of policy and interpretations” issued by the Commissioner. 20
27 C.F.R. § 402.35(b)(1). While SSRs do not have the force of law, the Court gives the rulings deference “unless they are
plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989); see
1 is the responsibility of the ALJ, not the claimant’s physician, to determine residual functional
2 capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001).
3 At step five, the burden shifts to the Commissioner, who must then show that there are a
4 significant number of jobs in the national economy that the claimant can perform given her RFC,
5 age, education, and work experience. 20 C.F.R. § 416.912(g); Lounsburry v. Barnhart, 468 F.3d
6 1111, 1114 (9th Cir. 2006). To do this, the ALJ can use either the Medical Vocational Guidelines
7 (“grids”) or rely upon the testimony of a VE. See 20 C.F.R. § 404 Subpt. P, App. 2; Lounsburry,
8 468 F.3d at 1114; Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). “Throughout the five-
9 step evaluation, the ALJ is responsible for determining credibility, resolving conflicts in medical
10 testimony, and for resolving ambiguities.’ ” Ford, 950 F.3d at 1149 (quoting Andrews v. Shalala,
11 53 F.3d 1035, 1039 (9th Cir. 1995)).
12 B. Standard of Review
13 Congress has provided that an individual may obtain judicial review of any final decision of
14 the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In
15 determining whether to reverse an ALJ’s decision, the Court reviews only those issues raised by the
16 party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). Further,
17 the Court’s review of the Commissioner’s decision is a limited one; the Court must find the
18 Commissioner’s decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g);
19 Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). “Substantial evidence is relevant evidence which,
20 considering the record as a whole, a reasonable person might accept as adequate to support a
21 conclusion.” Thomas v. Barnhart (Thomas), 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v.
22 Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)); see also Dickinson v. Zurko,
23 527 U.S. 150, 153 (1999) (comparing the substantial-evidence standard to the deferential clearly-
24 erroneous standard). “[T]he threshold for such evidentiary sufficiency is not high.” Biestek, 139 S.
25 Ct. at 1154. Rather, “[s]ubstantial evidence means more than a scintilla, but less than a
26 preponderance; it is an extremely deferential standard.” Thomas v. CalPortland Co. (CalPortland),
27 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted); see also Smolen v.
1 the ALJ’s decision where the error is harmless. Stout, 454 F.3d at 1055–56. Moreover, the burden
2 of showing that an error is not harmless “normally falls upon the party attacking the agency’s
3 determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
4 Finally, “a reviewing court must consider the entire record as a whole and may not affirm
5 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 1159
6 (9th Cir. 2012) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Nor may
7 the Court affirm the ALJ on a ground upon which he did not rely; rather, the Court may review only
8 the reasons stated by the ALJ in his decision. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); see
9 also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Nonetheless, it is not this Court’s
10 function to second guess the ALJ’s conclusions and substitute the Court’s judgment for the ALJ’s;
11 rather, if the evidence “is susceptible to more than one rational interpretation, it is the ALJ’s
12 conclusion that must be upheld.” Ford, 950 F.3d at 1154 (quoting Burch v. Barnhart, 400 F.3d 676,
13 679 (9th Cir. 2005)).
14 IV.
15 DISCUSSION AND ANALYSIS
16 Plaintiff challenges the ALJ’s determination that she has the mental functional capacity to
17 perform simple, routine tasks that are not fast-paced and have no strict production demands,
18 involving only low stress work which is defined as occasional decision making and occasional
19 changes in the work setting. Plaintiff argues that the ALJ erred by failing to properly consider the
20 opinion of Dr. Livesay and that she did not adequately explain her analysis for rejecting Dr.
21 Livesay’s restrictions, specifically the marked limitations opined. (Pl.’s Opening Brief (“Mot.”) 17,
22 ECF No. 18.) Plaintiff contends that the medical records referenced by the ALJ are limited and the
23 ALJ mischaracterized the evidence while ignoring evidence that was consistent with Dr. Livesay’s
24 opinion. (Mot. 18.)
25 Plaintiff also argues that the mischaracterization of the evidence by inaccurately suggesting
26 normal mental examinations reflects a flawed analysis and improper cherry picking. (Mot. 19.)
27 Plaintiff alleges that the ALJ ignored the documentation of poor concentration and difficulties with
1 mental limitations that were ignored by the ALJ and that is error. (Mot. 21.) Plaintiff contends that
2 the error was harmful and seeks remand for further proceedings. (Mot. 23.)
3 Defendant responds that the ALJ properly evaluated the opinion of Dr. Livesay and properly
4 explained her consideration of the most important factors: consistency and supportability in finding
5 Dr. Livesay’s opinion not persuasive. (Def.’s Responsive Brief (“Opp.”) 12, ECF No. 20.)
6 Defendant argues that Plaintiff is seeking to have the court reweigh the evidence in her favor. (Opp.
7 13.) Defendant contends that the ALJ does not have an obligation to discuss every piece of evidence
8 and the evidence Plaintiff cites does not show that the ALJ lacked evidentiary support for her
9 findings. (Opp. 13.) Further, Defendant contends that Plaintiff does not explain how the evidence
10 that she cites in her brief undermines the ALJ’s analysis. (Opp. 13.) Defendant argues that Plaintiff
11 cites her self-reports to her treating providers, however, the ALJ is not required to credit her
12 subjective complaints merely because they are contained in medical records. (Opp. 13-14.)
13 Finally, Defendant argues that even if the ALJ erred in evaluating the opinion, such error
14 would be harmless. (Opp. 15.) Dr. Livesay opined the Plaintiff had marked limitations in usual
15 stress tolerance, and Defendant contends that the RFC actually accommodates the limitation because
16 the ALJ limited Plaintiff to simple, routine tasks in a low stress environment, which is defined as
17 involving only occasional decision-making and occasional work setting changes. (Opp. 15.)
18 Finally, Defendant asserts that Plaintiff has not shown that, if there was an error in assessing the
19 limitations, there was any prejudice. (Opp. 16.)
20 Plaintiff replies that her challenge to compliance with the regulations is not limited to the
21 substantial evidence test. (Pl.’s Reply Brief (“Reply”) 2, ECF No. 21.) Plaintiff asserts that the
22 ALJ’s analysis violated the agency’s regulations and remand is warranted. (Reply 3.) Plaintiff also
23 replies that the RFC does not accommodate the limitations opined by Dr. Livesay. (Reply 4.)
24 Plaintiff contends that while the RFC may arguably have addressed some of the limitations opined
25 by Dr. Livesay, the restrictions assessed by Dr. Livesay would have precluded the other jobs that
26 were identified by the ALJ and this may have resulted in a finding of disability. (Reply 5.)
27 / / /
1 A. Applicable General Legal Standards
2 1. Weighing Medical Opinions and Prior Administrative Medical Findings5
3 Where, as here, a claim is filed after March 27, 2017, the revised Social Security
4 Administration regulations apply to the ALJ’s consideration of the medical evidence. See
5 Revisions to Rules Regarding the Evaluation of Medical Evidence (Revisions), 82 Fed. Reg. 5844-
6 01, 2017 WL 168819, at *5844 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. Under the updated
7 regulations, the agency “will not defer or give any specific evidentiary weight, including controlling
8 weight, to any medical opinion(s) or prior administrative medical finding(s), including those from
9 [the claimant’s own] medical sources.” 20 C.F.R. §§ 404.1520c(a); 416.920c(a). Thus, the new
10 regulations require an ALJ to apply the same factors to all medical sources when considering
11 medical opinions, and no longer mandate particularized procedures that the ALJ must follow in
12 considering opinions from treating sources. See 20 C.F.R. § 404.1520c(b) (the ALJ “is not required
13 to articulate how [he] considered each medical opinion or prior administrative medical finding from
14 one medical source individually.”); Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). As
15 recently acknowledged by the Ninth Circuit, this means the 2017 revised Social Security regulations
16 abrogate prior precedents requiring an ALJ to provide “clear and convincing reasons” to reject the
17 opinion of a treating physician where uncontradicted by other evidence, or otherwise to provide
18 “specific and legitimate reasons supported by substantial evidence in the record,” where
19 contradictory evidence is present. Woods v. Kijakazi, 32 F.4th 785, 788–92 (9th Cir. 2022).
20 Instead, “[w]hen a medical source provides one or more medical opinions or prior
21 administrative medical findings, [the ALJ] will consider those medical opinions or prior
22 administrative medical findings from that medical source together using” the following factors: (1)
23 supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; [and] (5) other
24

25
5 Under the applicable regulations for evaluating medical evidence, State agency medical and psychological consultants
do not provide “medical opinions.” Rather, the new regulations use the term “prior administrative medical finding” to
refer to findings “about a medical issue” made by the State agency medical and psychological consultants who review
26
a claimant’s medical file at the initial and reconsideration levels of the administrative process. See 20 C.F.R. §
416.913(a)(5). ALJs, however, must consider this evidence under the same rules that apply to “medical opinions”
27 because these “consultants are highly qualified and experts in Social Security disability evaluation.” 20 C.F.R. §
416.913a(b)(1); see also 20 C.F.R. § 416.913(a) (identifying “medical opinions” and “prior administrative medical
1 factors that “tend to support or contradict a medical opinion or prior administrative medical
2 finding.” 20 C.F.R. §§ 404.1520c(a), (c)(1)–(5). The most important factors to be applied in
3 evaluating the persuasiveness of medical opinions and prior administrative medical findings are
4 supportability and consistency. Woods, 32 F.4th at 791 (citing 20 C.F.R. §§ 404.1520c(a), (b)(2)).
5 Regarding the supportability factor, the regulation provides that the “more relevant the objective
6 medical evidence and supporting explanations presented by a medical source are to support his or
7 her medical opinion(s), the more persuasive the medical opinions … will be.” 20 C.F.R. §
8 404.1520c(c)(1). Regarding the consistency factor, the “more consistent a medical opinion(s) is
9 with the evidence from other medical sources and nonmedical sources in the claim, the more
10 persuasive the medical opinion(s) … will be.” 20 C.F.R. § 404.1520c(c)(2).
11 Accordingly, the ALJ must explain in her decision how persuasive she finds a medical
12 opinion and/or a prior administrative medical finding based on these two factors. 20 C.F.R. §
13 404.1520c(b)(2). The ALJ “may, but [is] not required to, explain how [she] considered the [other
14 remaining factors],” except when deciding among differing yet equally persuasive opinions or
15 findings on the same issue. 20 C.F.R. §§ 404.1520c(b)(2)–(3). Further, the ALJ is “not required
16 to articulate how [she] considered evidence from nonmedical sources.” 20 C.F.R. § 404.1520c(d).
17 Nonetheless, even under the new regulatory framework, the Court still must determine whether the
18 ALJ adequately explained how she considered the supportability and consistency factors relative
19 to medical opinions and whether the reasons were free from legal error and supported by substantial
20 evidence. See Martinez V. v. Saul, No. CV 20-5675-KS, 2021 WL 1947238, at *3 (C.D. Cal. May
21 14, 2021).
22 B. Discussion
23 Plaintiff contends that the ALJ erred in evaluating the opinion of Dr. Livesay.
24 1. ALJ’s Opinion
In addressing Plaintiff’s mental deficiencies, the ALJ considered Dr. Livesay’s opinion.
25
Similarly, the claimant alleges some mental deficiencies; however, the claimant
26 lacks the objective medical evidence to substantiate the totality of her allegations
[AR 406, 418, 684, 731, 772.] Specifically, the claimant underwent a consultative
27 examination in 2020 with Jerry Livesay, Ph. D. [AR 403-407.] During the
examination, the claimant demonstrated slow speech, gait, and mental stream of
1 Additionally, she was unable to recall any objects after a five-minute delay, and she
had a tendency to forget questions (Id). However, she exhibited high average
2 intelligence and was able to complete simple addition and subtraction problems (Id).
Additionally, she had a cooperative attitude and had [no] signs of delusional thinking
3 (Id).

4 Further, the claimant generally demonstrated unremarkable mental functioning
during other examinations [AR 416-480, 676-722, 714-751, 753-780.] Specifically,
5 she generally demonstrated appropriate speech and affect (Id). Additionally, she
demonstrated normal mental status and normal memory during multiple
6 examinations (Id). Further, the claimant testified that she takes psychiatric
medication but does not see a psychiatrist or a counselor.
7
Considering the objective evidence of the claimant’s neurocognitive disorder and
8 major depressive disorder, in light of the objective medical record and the claimant’s
reports regarding her mental impairments, because the claimant showed slow mental
9 functioning and memory deficits but was able to perform simple mathematics during
the consultative examination, the claimant can perform simple, routine tasks that are
10 not fast paced and have no strict production demands. Additionally, because the
claimant reported deficits in handling stress but generally demonstrated
11 unremarkable mental functioning, the claimant can perform low stress work, which
is defined as occasional decision-making and occasional changes in the work setting.
12
13 (AR 32.)
14 In evaluating the medical evidence, the ALJ considered the opinion of State examiner James
15 Levasseur, Ph.D. who opined that Plaintiff had no more than mild limitations in mental functioning
16 with non-severe impairment. (AR 33.) The ALJ found the opinion to be somewhat persuasive as it
17 was internally supported by the examiner’s own review of the record, but not entirely consistent with
18 Plaintiff demonstrating memory deficits during the consultative examination. (AR 33,127-28, 406.)
19 The ALJ considered the opinion of Dr. Livesay and found it to be not persuasive. (AR 34.)
20 Dr. Livesay opined that Plaintiff was markedly limited in her ability to deal with usual stress
21 encountered in the workplace. (AR 34.) While the opinion was somewhat supported, Plaintiff
22 demonstrated slow mental stream and slow rate of speech during the examination, the ALJ found it
23 not supported by Plaintiff showing normal memory during multiple examinations in 2021. (AR 34,
24 405, 684, 772.) Further, Plaintiff was not anxious during multiple examinations. (AR 34, 405, 684,
25 772.)
26 The ALJ also considered that Plaintiff reported deficits with her migraines but was able to
27 perform simple addition and subtraction during the consultative examination despite suffering a bad
headache earlier that day. (AR 34.) Additionally, the ALJ considered that Plaintiff reported that he
1 takes her medication as prescribed, and it is helpful. (AR 34.)
2 2. Whether the ALJ erred in considering Dr. Livesay’s opinion
3 a. Whether the ALJ misrepresented Dr. Livesay’s report
4 Plaintiff argues that the ALJ mischaracterized the report of Dr. Livesay by referring to a page
5 that only mentions “documentation of Plaintiff’s endorsement of “chronic headaches, memory
6 impairment, hypersomnia, confusion, and chronic fatigue since her brain aneurysm in 2014.” (Mot.
7 14.) Plaintiff contends that this mischaracterizes the evidence and therefore remand is appropriate.
8 (Mot. 14.) Defendant replies that the reference to this page was clearly a typographical error and
9 not a misunderstanding of Dr. Livesay’s report as the ALJ was aware of Plaintiff’s memory
10 problems. (Opp. 12 fn.12.)
11 In considering Plaintiff’s mental impairments, the ALJ noted that during the consultative
12 examination, Plaintiff was unable to recall any of the objects after a five-minute delay, however she
13 demonstrated high average intelligence and was able to perform simple addition and subtraction.
14 (AR 27, 406.) Further, the ALJ considered that she demonstrated slow speech and deficits in
15 concentration because she forgot some of the questions. (AR 28, 405.)
16 In developing the RFC, the ALJ considered the consultative examination by Dr. Livesay
17 found Plaintiff demonstrated slow speech, gait and mental stream of flow while reporting that she
18 had suffered a bad headache earlier in the day. (AR 32, 405.) The ALJ also considered that she was
19 unable to recall any objects after five minutes and had a tendency to forget questions. (AR 32, 406.)
20 However, Dr. Livesay also found that Plaintiff had high average intelligence, was able to complete
21 simple addition and subtraction problems, and did not show signs of delusional thinking. (AR 32,
22 406.)
23 In finding Dr. Livesay’s opinion not to be persuasive, the ALJ noted that Dr. Livesay opined
24 that Plaintiff had markedly impaired ability to deal with the usual stress encountered in the
25 workplace. (AR 34, 407.) The ALJ found the opinion to be somewhat supported by Plaintiff
26 demonstrating a slow mental stream and slow rate of speech during the examination, it was not
27 supported by other records in 2021 showing normal memory and no anxiety on examination. (AR
1 Plaintiff contends that the ALJ’s statement, “While it is somewhat supported by the claimant
2 demonstrating slow mental stream and slow rate of speech during the consultative examination, it is
3 not supported by the claimant showing normal memory during multiple examinations in 2021[,]”
4 (AR 34), misrepresented that Dr. Livesay’s report contained normal mental findings, (Mot. 17).
5 Defendant responds that the ALJ made a typographical error. (Opp. 13, fn.12.) However, it seems
6 clear from the sentence that the reference to Dr. Livesay’s report was for the slow mental stream and
7 slow rate of speech contained therein and was not an indication that the ALJ found Dr. Livesay’s
8 report to have normal mental findings. The ALJ could have been clearer had she made her citations
9 differently (“While it is somewhat supported by the claimant demonstrating slow mental stream and
10 slow rate of speech during the consultative examination [Exhibit B3F/3], it is not supported by the
11 claimant showing normal memory during multiple examinations in 2021[, (Exhibits B10F/10; and
12 B12F/21)]. This does not compel a finding that the ALJ misrepresented the report of Dr. Livesay.
13 Dr. Livesay’s findings during the consultative examination were considered and the findings
14 of Dr. Livesay were correctly set forth in the ALJ’s opinion. The Court finds that the ALJ did not
15 misrepresent Dr. Livesay’s opinion by finding that Dr. Livesay’s mental findings were normal.
16 b. Whether substantial evidence supports the ALJ’s opinion
17 Plaintiff argues that the ALJ improperly ignored evidence that supports Dr. Livesay’s report,
18 and this is legal error that requires remand. Specifically, Plaintiff argues that the ALJ did not
19 mention all the findings in Dr. Livesay’s report and other evidence in the record that support his
20 opinion. (Mot. 20.) Plaintiff contends that the ALJ cherry picked from the record and ignored
21 evidence that would support Dr. Livesay’s opinion. An ALJ would err by ignoring significant
22 objective evidence from other medical and nonmedical sources in the record that are consistent with
23 the medical opinion rejected. Thompson v. Comm’r of Soc. Sec., No. 2:20-CV-3-KJN, 2021 WL
24 1907488, at *6 (E.D. Cal. May 12, 2021); see also Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th
25 Cir. 2014) (some period of improvement does not mean the impairment no longer serious affects the
26 claimant’s ability to work; the medical record must be read in context of the overall diagnostic
27 picture the provider draws); Garrison v. Colvin, 759 F.3d 995, 1018 (9th Cir. 2014) (ALJ erred by
1 The ALJ found that Dr. Livesay’s opinion that Plaintiff was markedly limited in her ability to
2 deal with the usual stress encountered in the workplace was not persuasive because it was not
3 supported by several other normal mental examinations in 2021 and findings during those
4 examinations that Plaintiff was not anxious. (AR 34.) Otherwise, the ALJ’s findings are consistent
5 with Dr. Livesay’s report which opined that Plaintiff was capable of managing her own funds; her
6 ability to perform simple and repetitive tasks was mildly impaired; her ability to perform detailed
7 and complex tasks is moderately impaired; her ability to accept instructions from supervisors was
8 unimpaired; her ability to interact with coworkers and the public was mildly impaired; and her ability
9 to perform work activities on a consistent basis without special or additional instruction was mildly
10 impaired; and her ability to maintain regular attendance and complete a normal work day/work week
11 without interruptions from a psychiatric condition is moderately impaired. (AR 407.) Accordingly,
12 the Court considers whether the evidence that Plaintiff cites in her motion is consistent with Dr.
13 Livesay’s opinion that Plaintiff’s ability to deal with the usual stress encountered in the workplace
14 was markedly impaired.6 (AR 407.)
15 The ALJ considered the following medical records that he found to be inconsistent with Dr.
16 Livesay’s finding of marked limitations. Plaintiff was seen on September 29, 2020, by her primary
17 care provider. (AR 417-18.) Plaintiff reported no anxiety, depression, sleep disturbance, irritability,
18 or mood swings. (AR 417.) On examination, she was found to be appropriately dressed, did not
19 appear withdrawn, and speech and affect were appropriate. (AR 418.)
20 Plaintiff was seen on April 13, 2021, by her pain specialist. (AR 683-84.) She reported
21 headaches, anxiety, and depression. (AR 683.) She was noted to be well groomed and appeared to
22 be in moderate pain. (AR 683.) On examination of higher functions, Plaintiff was conscious, and
23 oriented to time, place, and person. (AR 684.) Her mental status was normal, and she had normal
24 immediate, recent, and remote memory.7 (AR 684.) Her speech was normal in rate, flow, rhythm,
25
6 Although the ALJ states “support” the evidence of other providers refers to consistency. 20 C.F.R. §
26
404.1520c(c)(2).

27 7 While Plaintiff points out that she was on multiple medications and no medical source directly commented on
the effects of her prescribed medication, the mental examinations from her pain specialist demonstrate that her
1 productivity and tone. (AR 684.) Plaintiff argues that this record also shows that Plaintiff had
2 abnormal posture, poor concentration and difficulties with activities of daily living. (Mot. 20.) It is
3 unclear how the finding of abnormal posture would support a marked limitation in ability to handle
4 usual stress in the workplace, and the difficulty with concentration and daily activities (AR 684) are
5 Plaintiff’s subjective complaints, not medical findings. The ALJ is not required to credit a claimant’s
6 subjective complaints simply because they are recorded in her physician’s records. Sager v. Colvin,
7 622 F. App’x 629, 629 (9th Cir. 2015) (citing Batson, 359 F.3d at 1195).
8 Plaintiff saw her primary care provider on April 20, 2021, and reported no anxiety, depression,
9 sleep disturbance, irritability or mood swings. (AR 730.) She was noted to be appropriately dressed
10 and did not appear anxious or withdrawn. (AR 731.) Plaintiff was in no acute distress and speech
11 and affect were appropriate. (AR 730-31.) On neurologic examination, Plaintiff was alert and
12 oriented times three with no gross abnormalities noted. (AR 731.)
13 Plaintiff was seen by her pain specialist on July 7, 2021, and reported her pain interfered with
14 her sleep, concentration, mood, and recreation at times. (AR 769.) In her motion, Plaintiff argues
15 that the ALJ ignored Dr. Kay’s observation that her condition sometimes affects her mood and
16 interferes with her concentration. (Mot. 20.) However, again the record referred to contains
17 Plaintiff’s reports of her symptoms, which are not medical findings. (Mot. 9, AR 684.) Sager, 622
18 F. App’x at 629.
19 At this visit, Plaintiff denied disorientation or dizziness and reported anxiety, but no
20 depression or insomnia. (AR 770.) On examination, Plaintiff was found to be in no acute distress,
21 with a normal demeanor. (AR 771.) She was anxious, and in moderate pain. (AR 771.) Plaintiff
22 was found to have good communication ability. (AR 771.) There were no signs of intoxication or
23 withdrawal. (AR 771.) Plaintiff was conscious, oriented to time, place and person, and her mental
24 status was noted to be normal. (AR 772.) Plaintiff had normal immediate, recent, and remote
25 memory. (AR 772.) Plaintiff’s speech was normal in rate, flow, rhythm, productivity, and tone.
26 (AR 772.)
27 Plaintiff argues that the ALJ failed to consider specific findings in Dr. Livesay’s examination
1 finding in the record. Here, the ALJ considered that Plaintiff demonstrated slow speech, mental
2 flow, and gait during her examination and that she was unable to recall any objects after a five-
3 minute delay and had a tendency to forget questions. (AR 32.) Plaintiff also showed high average
4 intelligence, was able to complete simple addition and subtraction problems, had a cooperative
5 attitude, and no signs of delusional thinking. (AR 32.) The ALJ found that because Plaintiff showed
6 slow mental functioning and memory deficits but was able to perform simple mathematics during
7 the consultative examination, she could perform simple, routine tasks that are not fast paced and
8 have no strict production demands. (AR 32.) Additionally, the ALJ found that because Plaintiff
9 reported deficits in handling stress but generally demonstrated unremarkable mental functioning she
10 could perform low stress work, defined as occasional decision-making and occasional changes in
11 the work setting. (AR 32.)
12 In specifically addressing Dr. Livesay’s opinion, the ALJ found that it was somewhat
13 supported by Plaintiff demonstrating slow mental stream and slow rate of speech during the exam.
14 (AR 34.) 20 C.F.R. § 404.1520c(c)(1). While the ALJ stated Dr. Livesay’s opinion was not
15 supported by Plaintiff showing normal memory and no anxiety during multiple examinations in
16 2021, (AR 34), this factor speaks to consistency, not supportability. 20 C.F.R. § 404.1520c(c)(2).
17 Upon review of the medical evidence in the record cited by Plaintiff to support Dr. Livesay’s
18 opinion, the Court finds none that are consistent with the marked limitations opined which would
19 warrant remand. Accordingly, the ALJ’s finding that Dr. Livesay’s opinion was not persuasive has
20 substantial support in the record. The ALJ did not commit legal error by ignoring significant
21 evidence in the record that would support Dr. Livesay’s opinion.8
22 V.
23 CONCLUSION AND ORDER
24 In conclusion, the Court finds that the ALJ committed no error and Plaintiff’s challenges to
25 the ALJ’s findings regarding Dr. Livesay’s opinion are denied.
26

27 8 As the Court finds no error in the ALJ’s decision regarding Dr. Livesay’s report, Defendant’s alternate argument
that the residual functional capacity adequately accommodated the marked impairment in ability to deal with the
1 Accordingly, IT IS HEREBY ORDERED that Plaintiff's appeal from the decision of the
2 | Commissioner of Social Security is DENIED. It is FURTHER ORDERED that judgment be entered
3 favor of Defendant Commissioner of Social Security and against Plaintiff Maria Candelaria Salas
4 | Valenzuela. The Clerk of the Court is directed to CLOSE this action.
5
6 T IS SO ORDERED. DAM Le
7 Dated: _ February 27, 2024 ;

UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10059538. Public record. Not legal advice.