# Alcantara v. Kijakazi

> District Court, S.D. California · September 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10086476

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10086476

## How later opinions describe it (automated extraction)

- finding legal error 21 where the ALJ “failed to identify the testimony she found not credible”

## Opinion text

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9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
11
12 RENE A., Case No.: 3:21-cv-00613-AHG
13 Plaintiff, ORDER RESOLVING JOINT
MOTION FOR JUDICIAL REVIEW
14 v.
AND AFFIRMING DECISION OF
15 KILOLO KIJAKAZI, Commissioner of COMMISSIONER
Social Security,
16
[ECF No. 17]
Defendant.
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20 On May 6, 2022, Rene A. (“Plaintiff”) and Kilolo Kijakazi, the Acting
21 Commissioner of Social Security, (“Commissioner” or “Defendant”) filed a Joint Motion
22 for Judicial Review of Final Decision of the Commissioner of Social Security (“Joint
23 Motion”) pursuant to 42 U.S.C. § 405(g), regarding Plaintiff’s request for judicial review
24 of a decision by the Commissioner denying Plaintiff’s application for a period of disability
25 and disability insurance benefits. ECF No. 17.
26 After a thorough review of the parties’ submissions, the administrative record, and
27 applicable law, the Court DENIES the joint motion and AFFIRMS the Commissioner’s
28 denial of disability insurance benefits.
1 I. PROCEDURAL BACKGROUND
2 Plaintiff was born in 1961, making him an individual “closely approaching advanced
3 age” on his alleged disability onset date. ECF No. 9, Certified Administrative Record
4 (“AR”) 140. His past relevant work was as a data processor and information security
5 specialist. AR 149.
6 On March 31, 2019, Plaintiff filed an application for a period of disability and
7 disability insurance benefits under Title II of the Social Security Act, alleging disability
8 beginning February 16, 2016. AR 151–52, 227–29. Plaintiff’s application was denied on
9 July 5, 2019. AR 166–70. On August 30, 2019, Plaintiff requested reconsideration.
10 AR 172. Plaintiff’s claims were denied at the reconsideration level on January 13, 2020.
11 AR 173–74. Plaintiff timely requested a hearing before an Administrative Law Judge
12 (“ALJ”) on March 13, 2020, and a hearing was held on October 1, 2020. AR 118, 177–78.
13 On October 21, 2020, the ALJ issued an unfavorable decision, finding Plaintiff was
14 not disabled under sections 216(i) or 223(d) of the Social Security Act, and accordingly
15 denying disability insurance benefits. AR 26–46. The Appeals Council affirmed the ALJ’s
16 decision, finding that the additional medical evidence submitted did not show “a reasonable
17 probability that it would change the outcome of the decision,” AR 1–2, making the ALJ’s
18 opinion the final decision of the Commissioner. See 42 U.S.C. § 405(h).
19 On April 8, 2021, Plaintiff timely commenced this appeal, seeking judicial review
20 of the Commissioner’s final decision pursuant to 42 U.S.C. § 405(g). ECF No. 1. The
21 Commissioner filed the Administrative Record on October 13, 2021. ECF No. 9. Pursuant
22 to the Court’s briefing schedule (see ECF Nos. 11, 15), the parties timely filed their Joint
23 Motion on May 6, 2022. ECF No. 17.
24 / /
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1 II. SUMMARY OF ALJ’S FINDINGS
2 A. The Five-Step Evaluation Process
3 The ALJ follows a five-step sequential evaluation process in assessing whether a
4 claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094,
5 1098–99 (9th Cir. 1999). In the first step, the Commissioner must determine whether the
6 claimant is currently engaged in substantial gainful activity; if so, the claimant is not
7 disabled and the claim is denied. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir.
8 2006).
9 If the claimant is not currently engaged in substantial gainful activity, the second
10 step requires the ALJ to determine whether the claimant has a “severe” impairment or
11 combination of impairments significantly limiting his ability to do basic work activities,
12 and which has lasted or is expected to last for a continuous period of at least 12 months; if
13 not, a finding of nondisability is made and the claim is denied. Id.; see also 20 C.F.R.
14 § 404.1509 (setting forth the 12-month duration requirement). If the claimant has a
15 “severe” impairment or combination of impairments, the third step requires the ALJ to
16 determine whether the impairment or combination of impairments meets or equals an
17 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart
18 P, appendix 1; if so, disability is conclusively presumed and benefits are awarded.
19 Lounsberry, 468 F.3d at 1114.
20 If the claimant’s impairment or combination of impairments does not meet or equal
21 an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation
22 process. The fourth step requires the ALJ to determine whether the claimant has sufficient
23 residual functional capacity (“RFC”) to perform his past work. Id. Therefore, the ALJ must
24 determine the claimant’s RFC before moving to step four.
25 An RFC is “an assessment of an individual’s ability to do sustained work-related
26 physical and mental activities in a work setting on a regular and continuing basis.” Soc.
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1 Sec. Ruling (“SSR”) 96-9p, 1996 WL 374184, at *1 (July 2, 1996). An RFC reflects the
2 most a claimant can do despite his limitations. 20 C.F.R. § 404.1545(a)(1); Laborin v.
3 Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017); Smolen v. Chater, 80 F.3d 1273, 1291 (9th
4 Cir. 1996). An RFC assessment must include an individual’s functional limitations or
5 restrictions as a result of all of his impairments – even those that are not severe (see 20
6 C.F.R. § 404.1545(a)(1)-(2), (e)) – and must assess his “work-related abilities on a
7 function-by-function basis.” SSR 96-9p, 1996 WL 374184, at *1; see also Valentine v.
8 Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“an RFC that fails to take
9 into account a claimant’s limitations is defective”). An ALJ errs when he provides an
10 incomplete RFC that ignores or discounts “significant and probative evidence” favorable
11 to a claimant’s position. Hill v. Astrue, 698 F.3d 1153, 1161–62 (9th Cir. 2012) (further
12 noting that the error is not harmless when an ALJ fails to discuss significant and probative
13 evidence favorable to a claimant’s position because when the RFC is incomplete, the
14 hypothetical question presented to the vocational expert is incomplete and, therefore, the
15 ALJ’s reliance on the vocational expert’s answers is improper).
16 An RFC assessment is ultimately an administrative finding reserved to the ALJ.
17 20 C.F.R. § 404.1527(d)(2). However, an RFC determination must be based on all of the
18 relevant evidence, including the diagnoses, treatment, observations, and opinions of
19 medical sources, such as treating and examining physicians. 20 C.F.R. § 404.1545. A court
20 must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal
21 standards and substantial evidence in the record as a whole supports the decision. See
22 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). At step four of the disability
23 analysis, if the ALJ determines a claimant has sufficient RFC to perform past relevant
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1 “SSRs do not have the force of law. However, because they represent the Commissioner’s
27 interpretation of the agency’s regulations, we give them some deference. We will not defer
to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246
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1 work, the claimant is not disabled and the claim is denied. Drouin v. Sullivan, 966 F.2d
2 1255, 1257 (9th Cir. 1992). The claimant has the burden of proving that he is unable to
3 perform past relevant work at step four. Id. If the claimant meets this burden, a prima facie
4 case of disability is established. Id.
5 At step five, the burden then shifts to the ALJ to establish that the claimant is not
6 disabled because there is other work existing in “significant numbers” in the national or
7 regional economy that the claimant can do, taking into account the claimant’s RFC, age,
8 education, and work experience. 20 C.F.R. § 404.1560(c)(1)–(2); see also 20 C.F.R.
9 § 404.1520(g)(1). The ALJ usually meets this burden either (1) by the testimony of a
10 vocational expert who assesses the employment potential of a hypothetical individual with
11 all of the claimant’s physical and mental limitations that are supported by the record, or
12 (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 404, subpart P,
13 appendix 2. Lounsburry, 468 F.3d at 1114–15; Hill, 698 F.3d at 1162. The determination
14 of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R.
15 §§ 404.1520, 416.920; Tackett, 180 F.3d at 1099.
16 B. The ALJ’s Application of the Five-Step Process in this Case
17 The ALJ determined that Plaintiff had sufficient quarters of coverage for the purpose
18 of his disability claim to remain insured through December 31, 2021. AR 31. Accordingly,
19 the relevant period for the disability analysis is the alleged disability onset date of
20 February 16, 2016, through October 21, 2020, the date of the ALJ’s decision.2
21 At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful
22 activity since the alleged onset date of February 16, 2016. AR 31. The ALJ concluded that
23 severance pay received after the alleged onset date “does not rise to the level of substantial
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2 Plaintiff submitted additional medical evidence to the Appeals Council, including
27 records from the Department of Veterans Affairs dated October 26, 2020, through
January 21, 2021. AR 2. The Court agrees with the Appeals Council that these records are
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1 gainful activity,” and similarly found that Plaintiff’s 2018-2019 military retirement pay is
2 “not substantial gainful activity.” AR 31, 128. At step two, the ALJ found that Plaintiff has
3 the following severe impairments: degenerative disc disease of the cervical spine, carpal
4 tunnel syndrome (“CTS”) and osteoarthritis (“OA”) of the bilateral hands, multilevel
5 degenerative disc disease (“DDD”) with scoliosis and diffuse idiopathic skeletal
6 hyperostosis (“DISH”) of the thoracolumbar spine, and bilateral sacroiliac joint
7 degenerative joint disease. AR 32. The ALJ found that these impairments significantly
8 limit Plaintiff’s ability to perform basic work activities. AR 32. The ALJ found that
9 Plaintiff has the following non-severe medically determinable impairments, which “cause
10 only minimal abnormalities that would have no more than a minimal effect on his ability
11 to work[:]” pre-diabetes, hyperlipidemia, dermatitis, obstructive sleep apnea, tennis
12 elbow/lateral epicondylitis, right knee osteoarthritis, Achilles tendinitis of the left leg, and
13 tension headaches. AR 32–34. At step three, the ALJ determined that Plaintiff did not have
14 an impairment or combination of impairments that meets or medically equals the severity
15 of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 34.
16 Before proceeding to step four, the ALJ addressed Plaintiff’s RFC. The ALJ
17 determined that Plaintiff has the RFC to perform light work as defined by 20 C.F.R. §
18 404.1567(b) with the following limitations: “occasionally reach overhead bilaterally; never
19 climb ladders/ropes/scaffolds, or crawl; occasionally climb ramps/stairs, balance, stoop,
20 kneel, and crouch; frequently handle and finger with the bilateral hands, but cannot perform
21 forceful gripping, grasping, or torquing; and, he must avoid concentrated exposure to
22 hazards such as unprotected heights and dangerous moving machinery.” AR 36. The ALJ
23 considered Plaintiff’s subjective statements and found that his “medically determinable
24 impairments could reasonably be expected to cause the alleged symptoms; however, the
25 claimant’s statements concerning the intensity, persistence and limiting effects of these
26 symptoms are not entirely consistent with the medical evidence[.]” AR 34–35. The ALJ
27 also found that Plaintiff’s activities of daily living are inconsistent with his statements
28 regarding the limiting effects of his symptoms, since he was able to complete his
1 Bachelor’s degree in computer science with a 3.98-4.0 GPA after his alleged disability
2 onset date. AR 40. The ALJ also highlighted Dr. Glenn Balfour’s consistent
3 recommendations of “conservative care” including wrist splints, home exercise programs
4 (“HEP”), stretches, a transcutaneous electrical nerve stimulation (“TENS”) unit,
5 acupuncture, and over the counter Non-Steroidal Anti-Inflammatory Drugs (“NSAIDs,”
6 such as Motrin), and VA providers’ similar conservative recommendations for
7 compression gloves and topical lidocaine. AR 37–38. The ALJ found the opinion of
8 orthopedic consultive examiner Dr. Easley to be “generally, but not entirely, persuasive,”
9 noting that the portion of his opinion which stated that “the claimant can occasionally grip,
10 grasp, and torque with the bilateral hands” was less persuasive because it was inconsistent
11 with physical examination findings and longitudinal medical evidence. AR 40. The ALJ
12 found the opinion of state agency medical consultants Dr. Michelotti and Dr. Laiken to be
13 persuasive and consistent with the objective medical evidence. AR 41. The ALJ agreed
14 with their opinions that Plaintiff “can perform light work, except he can: occasionally climb
15 ramps/stairs, balance, stoop, kneel, crouch, and crawl; never climb ladders/ropes/scaffolds;
16 frequently handle and finger with the bilateral upper extremities; and, avoid concentrated
17 exposure to hazards” and included an additional restriction in Plaintiff’s RFC “limiting him
18 to no forceful gripping, grasping, and torquing, which the [ALJ] finds is not inconsistent
19 with—but rather more detailed than—these opinions.” AR 41. The ALJ “recognize[d] that
20 the claimant has degenerative disc disease of the cervical spine, CTS and OA of the
21 bilateral hands, multilevel DDD with scoliosis and DISH of the thoracolumbar spine, and
22 bilateral SI joint DJD, and has experienced some discomfort due to these conditions;
23 however, the objective medical records indicate that the claimant has been treated for these
24 conditions and has responded to this treatment.” AR 41.
25 At step four, the ALJ compared the RFC assessed to the demands of Plaintiff’s past
26 relevant work as an information security specialist, Dictionary of Occupational Titles
27 (“DOT”) 033.162-010, which is a sedentary and skilled, at Specific Vocational Preparation
28 (“SVP”) 8, occupation. AR 41. Based on the testimony of the Vocational Expert and
1 Plaintiff’s RFC, the ALJ concluded that Plaintiff “is able to perform his past relevant work
2 as actually performed by the claimant3 and as generally performed in the national
3 economy.” AR 42. The ALJ accepted the Vocational Expert’s testimony, although
4 reaching overhead and forceful gripping, grasping, or torquing were not addressed in the
5 DOT, because the Vocational Expert’s “testimony was based on his training, education,
6 and experience in the field of vocational rehabilitation[.]” AR 42. Therefore, the ALJ
7 determined that Plaintiff was not disabled at step four of the analysis and did not proceed
8 to step five. AR 42.
9 The issues presented by Plaintiff for appeal are (1) whether the ALJ’s step four
10 finding is supported by substantial evidence, and (2) whether the ALJ properly considered
11 Plaintiff’s testimony about his hand pain and limitations. ECF No. 17 at 4.
12 III. STANDARD OF REVIEW
13 Pursuant to 42 U.S.C. § 405(g), this Court has authority4 to review the
14 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed
15 only if it is not supported by substantial evidence or if it is based upon the application of
16 improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010).
17 The Court’s role is to determine whether the ALJ’s findings are supported by
18 substantial evidence and whether the ALJ applied the proper legal standards. See Batson v.
19 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Holohan, 246 F.3d at
20 1201. If so, the Court must affirm.
21

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23 3 Upon review of the hearing transcript, the Court notes that the Vocational Expert only
referred to the work as generally performed, not as actually performed by Plaintiff. AR
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135-36. However, this misstatement by the ALJ does not change the analysis. The Ninth
25 Circuit has explained that “we have never required explicit findings at step four regarding
a claimant’s past relevant work both as generally performed and as actually performed.”
26
Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (emphasis in original).
27
4 The parties consented to proceed before a Magistrate Judge on April 16, 2021. ECF No. 5;
28
1 “Substantial evidence means more than a mere scintilla, but less than a
2 preponderance. It means such relevant evidence as a reasonable mind might accept as
3 adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017)
4 (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988));
5 see also Richardson v. Perales, 402 U.S. 389, 401 (1971). In evaluating whether the
6 Commissioner’s decision is supported by substantial evidence on appeal, the Court must
7 review the record as a whole and consider adverse as well as supporting evidence. Green
8 v. Heckler, 803 F.2d 528, 530 (9th Cir. 1986). The ALJ is responsible for determining
9 credibility and resolving conflicts in medical testimony, as well as resolving any
10 ambiguities in the record. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Where
11 evidence is susceptible of more than one rational interpretation, the Commissioner’s
12 decision must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
13 The Court may also overturn the Commissioner’s denial of benefits if the denial is
14 based on legal error. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014).
15 Even if the decision was based on legal error, however, a court may not reverse an ALJ’s
16 decision if the error is harmless. Harmless error “exists when it is clear from the record that
17 the ALJ’s error was inconsequential to the ultimate nondisability determination.” Id. at 932
18 (internal quotations and citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 679
19 (9th Cir. 2005).
20 IV. WHETHER THE ALJ’S STEP FOUR FINDING IS SUPPORTED BY
21 SUBSTANTIAL EVIDENCE
22 First, Plaintiff argues that the ALJ’s step four finding is not supported by substantial
23 evidence. ECF No. 17 at 4. In doing so, Plaintiff poses two questions: whether the ALJ
24 erred in failing to account for rejecting medical evidence when formulating the RFC, and
25 whether the ALJ erred at step four in his questions to the Vocational Expert.
26 A. Parties’ Positions
27 Plaintiff contends that the ALJ erred by not including a limitation to about 6 hours
28 of sitting in the RFC, since Dr. Easley, Dr. Michelotti, and Dr. Laiken all concluded that
1 Plaintiff can perform a range of light work, but limited him to about 6 hours of sitting. ECF
2 No. 17 at 5 (citing AR 147, 160, 957). The ALJ found their opinions persuasive generally,
3 although the ALJ found the portions of Dr. Easley’s opinion regarding Plaintiff’s hands to
4 be less persuasive. AR 40-41. Plaintiff argues that the RFC therefore conflicts with the
5 medical evidence because it does not include a 6-hour sitting limitation. ECF No. 17 at 6.
6 Plaintiff argues that because of the conflict, the ALJ was required to explain why he did
7 not include that particular restriction in the RFC. Id. Plaintiff also argues that the
8 Vocational Expert’s testimony has no value as a result, because the hypothetical did not
9 reflect a six-hour sitting limitation. Id. at 7.
10 Plaintiff also takes issue with the RFC’s limitation to frequent fingering, 2.7 to 5.28
11 hours in an eight-hour day. Id. at 8–9. Plaintiff argues his past relevant work as actually
12 performed required him to sit for 7 hours in an eight-hour day, and type or handle small
13 objects for 7 hours in an eight-hour day. Id. Plaintiff therefore contends that the ALJ erred
14 in finding that he could perform past work as actually performed. Id.
15 Plaintiff also contends that the ALJ erred in finding that he could perform past work
16 as generally performed, because the DOT classifies his past occupation as sedentary, and
17 sedentary work requires sitting for 6 to 8 hours, with 6 hours setting a minimum. Id. at 9.
18 Plaintiff argues the Court should instead utilize the Occupational Requirements Survey
19 (“ORS”), which notes that “at least 90% of [jobs related to Plaintiff’s past relevant work]
20 require more than six hours of sitting,” and thus supports a conclusion that Plaintiff could
21 not “perform his past relevant sedentary work as generally performed when limited to six
22 hours of sitting.” Id. at 9.
23 Defendant argues that the evidence in the record does not require the ALJ to include
24 an explicit restriction limiting Plaintiff to six hours of sitting per workday. Id. at 23. In the
25 alternative, Defendant argues that Plaintiff’s RFC already includes a limitation to sitting
26 for six hours since Plaintiff was limited to light work with additional limitations, which
27 meant that Plaintiff could perform sedentary work as well. Id. at 17. Defendant argues that
28 by limiting Plaintiff to light or sedentary work, which require a seated position for
1 approximately 6 hours of an 8-hour work day, the ALJ has implicitly incorporated a 6-hour
2 sitting limitation. Id. at 18–19.
3 Defendant concedes that the Vocational Expert did not provide testimony regarding
4 Plaintiff’s ability to perform past relevant work as actually performed. Id. at 21 n.3 (citing
5 AR 135–39). Defendant contends, however, that this was harmless error because the record
6 supports that Plaintiff can perform the position as generally performed. ECF No. 17 at 21
7 n.3.
8 B. Legal Standard
9 “A claimant’s residual functional capacity is what he can still do despite his physical,
10 mental, nonexertional, and other limitations.” Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5
11 (9th Cir. 1989) (citing 20 C.F.R. § 404.1545). In determining a claimant’s RFC, the ALJ
12 considers all relevant evidence, including RFC assessments5 made by consultative
13 examiners, State Agency physicians, and medical experts. See 20 C.F.R. § 404.1545(a)(3);
14 see also 20 C.F.R. § 404.1513(c). The ALJ is responsible for translating a claimant’s
15 condition and limitations into an RFC that “adequately captures restrictions” to the
16 claimant’s ability to work. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.
17 2008). An RFC is defective if it fails to take a claimant’s limitations into account.
18 Valentine, 574 F.3d at 690. When a claimant has moderate limitations as diagnosed by a
19 physician and the ALJ implicitly rejects those moderate limitations in the formulation of
20

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5 With respect to the ALJ’s consideration of medical opinion evidence, the Social Security
22
Administration’s revised regulations for considering medical opinions and prior
23 administrative findings, found at 20 C.F.R. § 404.1520c(c)(1)–(c)(5), apply because
Plaintiff applied for disability after March 27, 2017. AR 151–52, 227–29 (filed on March
24
31, 2019). The Ninth Circuit has recognized that these new regulations upend the
25 longstanding treating physician rule. Woods v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022).
Rather than attributing deference to a medical opinion based on the nature of the
26
relationship between the physician and the claimant, an ALJ must evaluate the
27 “persuasiveness” of any medical opinions. Id. at 792. An ALJ must explain his analysis of
a medical opinion as persuasive or not persuasive. Id. (“The agency must ‘articulate ... how
28
1 the claimant’s RFC, the ALJ must explicitly explain why he rejected the limitations.
2 Devery v. Colvin, No. CV 15-8503-RAO, 2016 WL 3452487, at *5 (C.D. Cal. June 22,
3 2016) (collecting cases).
4 However, “there is no requirement in the regulations for a direct correspondence
5 between an RFC finding and a specific medical opinion on the functional capacity in
6 question.” Yolanda R. v. Kijakazi, No. EDCV-21-405-KS, 2022 U.S. Dist. LEXIS 135465,
7 at *9 (C.D. Cal. July 29, 2022) (quoting Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir.
8 2012)). “An ALJ’s RFC assessment may sufficiently account for a physician’s opinion
9 regarding limitations without using the same language as the physician.” Precious A.J. v.
10 Kijakazi, No. EDCV-21-242-KS, 2022 U.S. Dist. LEXIS 136854, at *23 (C.D. Cal. Aug.
11 1, 2022); see, e.g., McIntosh v. Colvin, No. CV-16-963-JAH (BGS), 2018 WL 1101102, at
12 *5 (S.D. Cal. Feb. 26, 2018) (“There is no requirement that the RFC recite medical opinions
13 verbatim, rather the ALJ is responsible for translating and incorporating medical findings
14 into a succinct RFC.”); Lyons v. Colvin, No. CV-14-605-DMG-KK, 2015 WL 9701184, at
15 *24 (C.D. Cal. June 11, 2015) (“While an ALJ’s RFC finding need not be identical to
16 credible medical opinions, it does need to be consistent with them.”).
17 C. Substantial Evidence Supports there being No Six-Hour Sitting
18 Limitation in the RFC
19 Three physicians provided RFC assessments. On July 3, 2019, Dr. Michelotti
20 opined, among other limitations, that Plaintiff could “sit (with normal breaks) for a total of
21 [a]bout 6 hours in an 8-hour workday.” AR 147. Although Plaintiff appealed to Dr. Laiken
22 that there had been a change to his medical conditions in July 2019, including “walking
23 only 15-20min then needs a break, cannot sit longer than 1 hour, very uncomfortable,” on
24 January 3, 2020, Dr. Laiken considered all the evidence and opined that Plaintiff could “sit
25 (with normal breaks) for a total of [a]bout 6 hours in an 8-hour workday.” AR 158, 160.
26 On October 31, 2021, Dr. Easley examined Plaintiff, noting that he “gets into the chair
27 without difficulty and gets out of the chair without difficulty,” and opined that Plaintiff
28 “can stand and walk for 6 hours in an eight-hour workday. He can sit for 6 hours in an eight
1 hour workday.” AR 956–57. None of the doctors explained their opinions regarding the
2 limitation of sitting (or standing) for 6 hours during an 8-hour workday, or provided
3 specific reasons or medical evidence why Plaintiff would have a difficult time sitting (or
4 standing) for longer than 6 hours.
5 Further, the Court has thoroughly examined the 1,050-page record, which only
6 includes four allegations by Plaintiff regarding his ability to sit and five notations from
7 doctors upon examination of Plaintiff regarding his ability to walk. See AR 484 (on
8 April 30, 2015, Plaintiff complained of “recurrent low back pain with prolonged sitting”
9 with a pain level of 3/10. Upon examination, Dr. Samuel Abarte found “no neck pain” and
10 “no limb weakness, no tingling, and no numbness,” and Plaintiff’s back had “no swelling,”
11 “no induration,” “no tenderness to palpation,” “no muscle spasm,” and “no costrovertebral
12 angle tenderness.” Plaintiff’s lumbosacral spine “was normal,” “exhibited no swelling,”
13 “no ecchymosis,” and “no asymmetry,” and “lumbosacral spine pain was not elicited by
14 motion.”); AR 267 (in Plaintiff’s September 9, 2019, Disability Appeal Report, completed
15 by Plaintiff’s counsel, he reported that as of July 2019, he could “walk[] only 15-20 min
16 then needs a break, cannot sit longer th[a]n 1 hour, very uncomfortable[.]”); AR 277 (in
17 Plaintiff’s March 17, 2020, Disability Appeal Report, completed by Plaintiff’s counsel, he
18 reported that as of January 2020, Plaintiff “has to be constantly shifting positions while
19 sitting, standing, or laying down to try and find some comfort.”); AR 389 (on April 8, 2019,
20 Dr. Abarte assessed that Plaintiff did not “have problems walking or balanc[ing]”); AR 746
21 (in Plaintiff’s June 18, 2018, VA Disability Benefits Examination, Dr. Eric Venn-Watson
22 assessed that “patient has mild impairment activities such as prolonged standing and
23 walking”); AR 923 (on April 3, 2019, Plaintiff reported his back pain was “aggrav[ated]
24 by lifting, bending, twisting, prolonged standing or walking,” and Dr. Balfour noted that
25 Plaintiff is “able to walk [for] 20 mins before sitting.”); AR 938 (on June 5, 2019, Dr.
26 Balfour noted that Plaintiff is “able to walk 20 mins before sitting down.”); AR 942 (on
27 September 12, 2019, Plaintiff reported his back pain was “aggravated by lifting, thrusting,
28 bending, prolonged standing or sitting, or even walking,” and Dr. Balfour noted that
1 Plaintiff is “able to walk 30 mins before sitting down” and “has benefited from daily HEP
2 and stretches[,] acupuncture, chiropractor, and PT [physical therapy].”). No notations in
3 the record, aside from Dr. Michelotti’s, Dr. Laiken’s, and Dr. Easley’s opinions, reflect
4 any objective medical evidence regarding Plaintiff’s ability to sit for certain periods of
5 time.
6 Additionally, there is substantial evidence in the record that Plaintiff’s back pain
7 would not warrant such a strict six-hour-maximum sitting requirement, as his pain was
8 being managed effectively. Plaintiff reported to medical providers on several occasions
9 that his overall health was good, and his activities were not limited by health issues. E.g.,
10 AR 402, 417, 461-62, 475–76, 484–85, 598, 644. Plaintiff played basketball and walked
11 for exercise regularly. AR 439–40, 445, 448–49, 475–76, 621–22, 630. Plaintiff’s physical
12 examinations revealed normal findings. AR 388–89, 441, 623. Plaintiff’s condition
13 improved with conservative treatment. AR 923, 925, 938, 942, 944, 962–66, 1037. Plaintiff
14 frequently rated his pain level at 3/10 or lower. AR 388, 430–31, 461–62, 484–85, 569,
15 612. There is not substantial evidence in the record to demonstrate that Plaintiff cannot sit
16 for longer than 6 hours; as the ALJ discussed in detail in his opinion, Plaintiff’s medical
17 records show improvement, not regression. AR 36-40.
18 The ALJ is not required to accept every aspect verbatim of a doctor’s RFC
19 assessment opinion, even if he finds the opinion persuasive. Precious A.J., 2022 U.S. Dist.
20 LEXIS 136854, at *23; McIntosh, 2018 WL 1101102, at *5. Therefore, the Court finds that
21 the Plaintiff’s RFC, which does not include an explicit six-hour sitting limitation, is
22 supported by substantial evidence.
23 D. Even if it was Error to not Explicitly Include a Six-Hour Sitting
24 Limitation in the RFC, the Error was Harmless
25 Even if it was error for the ALJ to not include an explicit six-hour sitting limitation
26 in the RFC, the error would be harmless. First, the doctors’ opinions limiting Plaintiff to
27 sitting “about” six hours per workday are compatible with the assigned restriction to light
28 work, which includes a capacity for sedentary work. See 20 C.F.R. § 404.1567(b). Thus,
1 the medical opinions the ALJ found persuasive were reasonably consistent with and
2 incorporated into the assigned RFC. See Flores v. Saul, No. 1:19cv69-SKO, 2020 WL
3 3893392, at *7 (E.D. Cal. July 10, 2020) (“the ALJ may incorporate the opinions of a
4 physician by assessing RFC limitations entirely consistent with, but not identical to
5 limitations assessed by the physician.”) (internal quotation marks omitted).
6 Second, any error is harmless because Plaintiff can perform his past relevant work
7 even if he is limited to sitting for six hours in an eight-hour workday. The ALJ determined
8 the following RFC:
9 [T]he claimant can perform light work as defined in 20 CFR § 404.1567(b),
occasionally reach overhead bilaterally; never climb ladders/ropes/scaffolds,
10
or crawl; occasionally climb ramps/stairs, balance, stoop, kneel, and crouch;
11 frequently handle and finger with the bilateral hands, but cannot perform
forceful gripping, grasping, or torqueing [sic]; and, he must avoid
12
concentrated exposure to hazards such as unprotected heights and dangerous
13 moving machinery.
14 AR 35. If a claimant can do light work, he “can also do sedentary work, unless there are
15 additional limiting factors such as loss of fine dexterity or inability to sit for long6 periods
16 of time.” 20 C.F.R. § 404.1567(b). Plaintiff’s prior relevant work was as an information
17 security specialist. AR 42; DOT 033.162-010, 1991 WL 646561 (1991) (computer security
18 specialist). According to the DOT, Plaintiff’s prior relevant work as an information security
19 specialist is categorized as an exertionally sedentary position:
20 Sedentary Work - Exerting up to 10 pounds of force occasionally
(Occasionally: activity or condition exists up to 1/3 of the time) and/or a
21
negligible amount of force frequently (Frequently: activity or condition exists
22 from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects,
including the human body. Sedentary work involves sitting most of the time,
23
but may involve walking or standing for brief periods of time. Jobs are
24 sedentary if walking and standing are required only occasionally and all other
sedentary criteria are met.
25

26

27
6 Here, Plaintiff argues that he should be “limited to about six hours of sitting,” which is
28
1 Id.; see also DOT App’x C, 1991 WL 688702 (same definition). The DOT was last updated
2 in 1991, but in 1996, SSR 96-9p clarified:
3 Although a sedentary job is defined as one that involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties.
4
Jobs are sedentary if walking and standing are required occasionally and other
5 sedentary criteria are met. “Occasionally” means occurring from very little up
to one- third of the time, and would generally total no more than about 2 hours
6
of an 8-hour workday. Sitting would generally total about 6 hours of an 8-
7 hour workday. … In order to perform a full range of sedentary work, an
individual must be able to remain in a seated position for approximately 6
8
hours of an 8-hour workday, with a morning break, a lunch period, and an
9 afternoon break at approximately 2-hour intervals. If an individual is unable
to sit for a total of 6 hours in an 8-hour work day, the unskilled sedentary
10
occupational base will be eroded.
11
SSR 96-9p, 1996 WL 374185, at *3, *6 (1996) (emphasis added).
12
Although SSR 96-9p says sitting would generally total six hours, Plaintiff cites Mitzi
13
D. v. Saul for the proposition that sedentary work is not limited to a maximum of six hours
14
of sitting, which he paints as the fatal flaw. No. SACV-18-1065-DFM, 2019 WL 8112507,
15
at *2 (C.D. Cal. Dec. 13, 2019). The court in Mitzi reiterated that “approximately six hours
16
a day does not mean a maximum of six hours a day.” Id. (emphasis in original). The Court
17
notes that, here, two of the three medical opinions Plaintiff argues the ALJ rejected state
18
that Plaintiff can “sit (with normal breaks) for a total of about 6 hours in an 8-hour
19
workday.” AR 147, 160 (emphasis added). Using Plaintiff’s reasoning, sitting about six
20
hours does not mean sitting for a maximum of six hours, therefore, Plaintiff’s RFC and
21
past relevant work are consistent with Dr. Laiken’s and Dr. Michelotti’s opinions.
22
Further, Plaintiff’s reliance on Mitzi is entirely misplaced. In that opinion, the court
23
in fact denied reconsideration of its previous opinion in which the court found that two
24
state agency physicians’ proposed limitations of standing, walking, or sitting to 6 hours in
25
an 8-hour workday were consistent with an RFC limiting the plaintiff to light work, since
26
light work generally requires “standing or walking, off and on, for a total of approximately
27
6 hours of an 8-hour workday.” Mitzi D. v. Saul, No. SACV-18-01065-DFM, 2019 WL
28
1 4415100, at *1 (C.D. Cal. Sept. 16, 2019) (quoting SSR 83-10, 1983 WL 31251, at *6
2 (1983)). Therefore, the Mitzi court reached the same conclusion the Court reaches here—
3 that an ALJ need not explicitly incorporate a 6-hour standing, walking, or sitting limitation
4 into a claimant’s RFC if the RFC limits the claimant to an exertional category of work that
5 “generally” totals about 6 hours of an 8-hour workday.
6 Therefore, any error in not explicitly limiting Plaintiff to six hours of sitting in the
7 RFC is harmless because Plaintiff’s past relevant work is sedentary, which encompasses
8 the applicable sitting limitation.
9 E. Vocational Expert Hypothetical was Proper
10 In Plaintiff’s June 1, 2019, Work History Report, he stated that, in his most recent
11 job as an Information Security Analyst, he walked for 1 hour a day, stood for 1 hour a day,
12 sat for 7 hours a day, and wrote, typed, or handled small objects for 7 hours a day. AR 258.
13 He stated that he spent no time climbing, stooping, kneeling, crouching, crawling, reaching,
14 or handling, grabbing, or grasping big objects. AR 258. He stated that the heaviest item
15 lifted at work was 20 pounds, and noted that he frequently lifted items weighing 10 pounds.
16 AR 258. In the RFC, the ALJ limited Plaintiff to frequent handling and fingering with
17 bilateral hands, and no forceful gripping, grasping, or torquing. AR 35. During the
18 administrative hearing, the ALJ asked the Vocational Expert:
19 Q: Can you characterize his prior work for us?
20 A: He was an information security specialist, 033.162-010, skilled at SVP 8,
classified as sedentary and performed as sedentary, sir.
21
Q: For hypothetical one, assume a hypothetical individual of the claimant’s
22 same age, education, and work experience. And further assume that he can do
23 light work but with only occasionally overhead reaching bilaterally. No
climbing of ladders, ropes, or scaffolds, or crawling. But he can occasionally
24 perform all other postural activities. He can frequently bilaterally handle and
25 finger but he can do no forceful gripping, grasping, or torqueing and he must
avoid concentrated exposure to hazards such as unprotected heights or
26 dangerous moving machinery. …
27 A: … Your Honor, there is no reason why that job could not be performed,
that could be performed.
28
1 Q: Okay. So, it’s only frequent handling, fingering, and feeling per the DOT.
2 A: That’s what I was checking, Your Honor. It doesn’t go, it doesn’t go
beyond frequent.
3
Q: Frequent handle, finger, feel. Okay, now the DOT does not cover forceful
4 gripping, grasping, or torqueing [] nor does it cover directional reaching like
5 overhead. So, for those aspects of your testimony are you relying on
professional knowledge and experience?
6
A: I am, sir, 40+ years experience doing job analyses.
7
AR 135–36. Though the vocational expert does not use the phrases “as actually performed”
8
or “as it is generally performed,” he used his forty years of experience completing job
9
analyses and the DOT to answer about the job as generally performed. See 20 C.F.R. §
10
404.1560(b)(2); see cf. Mitzi D., 2019 WL 8112507, at *2 (vocational experts and ALJs
11
presumably understand what long-standing definitions and SSR interpretations are,
12
including light work).
13
Given its prior finding that the RFC is supported by substantial evidence, the Court
14
finds that the hypothetical posed to the Vocational Expert, as well as the finding that
15
Plaintiff could perform his past relevant work as generally performed, which includes
16
occasional handling and frequent fingering, is supported by substantial evidence. See Pinto,
17
249 F.3d at 845 (Plaintiff must be able to perform either the “actual functional demands
18
and job duties of a particular past relevant job; or [t]he functional demands and job duties
19
of the occupation as generally required by employers throughout the national economy.”)
20
(quoting SSR 82-61, 1982 WL 31387, at *2 (1982)) (emphasis in original); Lake v.
21
Kijakazi, No. 2:21-cv-1089-EJY, 2022 WL 855975, at *4 (D. Nev. Mar. 23, 2022) (ALJ
22
did not err in not asking the vocational expert a hypothetical about plaintiff’s job as actually
23
24

25
7 The DOT states that an information security specialist engages in “[h]andling:
26
[o]ccasionally – [e]xists up to 1/3 of the time; [and] [f]ingering: [f]requently – [e]xists from
27 1/3 to 2/3 of the time.” DOT 033.162-010, 1991 WL 646561 (1991). Therefore, as
generally performed, an information security specialist would handle for up to 2.6 hours
28
1 performed, which plaintiff was unable to perform and was different than it was generally
2 performed, because the ALJ is not required to make findings as to both).
3 V. WHETHER THE ALJ PROPERLY CONSIDERED PLAINTIFF’S PAIN
4 AND LIMITATION TESTIMONY ABOUT HIS HANDS
5 The second issue presented by Plaintiff for appeal is whether the ALJ properly
6 considered Plaintiff’s pain and limitation testimony about his hands. ECF No. 17 at 4.
7 A. Parties’ Positions
8 Plaintiff argues that the ALJ did not provide clear and convincing reasons for
9 rejecting Plaintiff’s pain and limitation testimony about his hands when conferring a
10 limitation of frequent handling and fingering and no forceful gripping, grasping, or
11 torquing. ECF No. 17 at 27–28. The ALJ found that Plaintiff’s hand pain and limitation
12 testimony was inconsistent with his lay off in February 2016, where he stopped working
13 for reasons unrelated to his disability, his subsequent return to college full time with a 3.98-
14 4.0 GPA, and because “there is little, if any, evidence of significant worsening of these
15 [hand] issues after his successful work and college.” Id. at 28 (quoting AR 37). Plaintiff
16 argues that there is evidence in the record that his hand impairments deteriorated in 2018.
17 ECF No. 17 at 29. Plaintiff argues that the ALJ should have adjudicated two separate
18 periods of time due to the change in his condition: (1) from Plaintiff’s alleged onset date
19 in February 2016 through 2017, and (2) 2018 through the present. Id. at 32. Therefore,
20 Plaintiff argues that the ALJ did not give clear and convincing evidence for the second time
21 period. Id. at 32–33.
22 Defendant argues that the ALJ provided clear and convincing reasons for rejecting
23 Plaintiff’s testimony, including the ALJ’s finding that Plaintiff’s ability to graduate from
24 college in a field that requires substantial typing and use of hands is inconsistent with that
25 testimony. Id. at 36. Defendant also points to medical records, such as an MRI, x-ray,
26 treatment notes, and testing completed after 2018 as inconsistent with Plaintiff’s testimony
27 regarding extreme hand issues, because the findings were mild and Plaintiff was provided
28 conservative care. Id. at 37–38. Defendant also contends that the RFC provided for
1 substantial limitations that incorporated a considerable number of Plaintiff’s allegations.
2 Id. at 35.
3 B. Legal Standard
4 When assessing a claimant’s credibility regarding subjective pain or intensity of
5 symptoms, the ALJ must engage in a two-step analysis. Trevizo v. Berryhill, 871 F.3d 664,
6 678 (9th Cir. 2017). First, the ALJ must determine if there is medical evidence of an
7 impairment that could reasonably produce the symptoms alleged. Id. (citing Garrison v.
8 Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). If the claimant satisfies this first step, and
9 there is no evidence of malingering, the ALJ must provide specific, clear and convincing
10 reasons for rejecting the claimant’s testimony about the symptom severity. Trevizo, 871
11 F.3d at 678 (citation omitted); see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th
12 Cir. 2006) (“[U]nless an ALJ makes a finding of malingering based on affirmative evidence
13 thereof, he or she may only find an applicant not credible by making specific findings as
14 to credibility and stating clear and convincing reasons for each.”); Smolen, 80 F.3d at 1284
15 (“[T]he ALJ may reject the claimant’s testimony regarding the severity of her symptoms
16 only if he makes specific findings stating clear and convincing reasons for doing so.”).
17 When rejecting testimony, the ALJ must specifically identify “what testimony is not
18 credible and what evidence undermines the claimant’s complaints.” Parra v. Astrue, 481
19 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995));
20 see also Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (finding legal error
21 where the ALJ “failed to identify the testimony she found not credible”); Smolen, 80 F.3d
22 at 1284 (“[t]he ALJ must state specifically which symptom testimony is not credible and
23 what facts in the record lead to that conclusion”).
24 The ALJ shall determine whether to credit a claimant’s statements about pain and
25 limitations by referring to the factors set forth in 20 C.F.R. §§ 404.1529(c)(3) and
26 416.929(c)(3), which include: the claimant’s daily activities; the location, duration,
27 frequency, and intensity of the claimant’s symptoms; the factors that precipitate and
28 aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication
1 taken to alleviate the symptoms; the claimant’s treatment, other than medication, for the
2 symptoms; any other measure that the individual uses to relieve pain or other symptoms;
3 and, finally, “any other factors concerning an individual’s functional limitations and
4 restrictions due to pain or other symptoms.” SSR 16-3p, 2017 WL 5180304, at *3 (2016).
5 However, the lack of objective medical evidence supporting a claimant’s allegations cannot
6 provide the sole basis for rejecting his statements about the severity of his symptoms and
7 limitations. Id.; see also Trevizo, 871 F.3d at 679; 20 C.F.R. § 416.929(c)(2) (“we will not
8 reject your statements about the intensity and persistence of your pain or other symptoms
9 or about the effect your symptoms have on your ability to work . . . solely because the
10 available objective medical evidence does not substantiate your statements”).
11 The ALJ must make a credibility determination with findings that are “sufficiently
12 specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s
13 testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation omitted);
14 see Brown-Hunter, 806 F.3d at 493 (“A finding that a claimant’s testimony is not credible
15 must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected
16 the claimant’s testimony on permissible grounds and did not arbitrarily discredit a
17 claimant’s testimony regarding pain.”) (citation omitted). Although an ALJ’s interpretation
18 of a claimant’s testimony may not be the only reasonable one, if it is supported by
19 substantial evidence, “it is not [the court’s] role to second-guess it.” Rollins v. Massanari,
20 261 F.3d 853, 857 (9th Cir. 2001).
21 B. Plaintiff’s Hand Pain and Limitation Statements
22 Plaintiff has been diagnosed with mild issues with his hands, with some test results
23 being normal. E.g., AR 326, 927 (“bilateral radial and ulnar sensory nerve conduction
24 studies,” “bilateral radial and ulnar motor nerve conduction studies,” and “bilateral EMG
25 studies” were normal); 441, 623 (“mobility was not limited” and the “strength of the upper
26 extremities was normal [and] no lower extremity weakness was observed”); 682 (x-rays
27 revealed mild issues on both hands); 955 (finger approximation was intact, Plaintiff was
28 able to make a fist, no deficits in finger movement). Plaintiff’s physicians have consistently
1 recommended conservative treatment for Plaintiff’s CTS and hand pain. E.g., AR 681–
2 683, 690 (wrist splints, orthotic training, moist heat mitts, active gloves, home exercises);
3 684 (wrist splints); 924–25 (wrist splints); 940 (stretching, over-the-counter medication,
4 wrist splints); 944 (over-the-counter medication, wrist splints); 985–86 (lidocaine patches,
5 compression gloves). The record shows that the conservative treatments were helping,
6 since Plaintiff often reported that using a wrist brace helped with his hand pain. AR 682
7 (Jan 23, 2019); AR 923 (Apr. 3, 2019); AR 938 (June 5, 2019); AR 942 (Sept. 12, 2019);
8 see AR 74 (Aug. 5, 2020, complaining of more hand pain and conceding that “he only wore
9 wrist braces occasionally”).
10 On January 23, 2019, Plaintiff complained of a decade of hand and arm pain with a
11 pain rating between 6/10 at rest and 8/10 when in use that he described as “constant
12 stabbing, numbness, tingling, burning, sharp aching, cramping, and stiffness [that is] worse
13 in morning and affect[s] sleep.” AR 682; see also AR 923, 938, 942 (from April to
14 September, 2019, Plaintiff reported that he had wrist pain “for many years”); AR 130–31
15 (Plaintiff’s testimony at the hearing, stating that he did not work after completing school
16 in 2017-2018 because he had “issues with my hand”). However, during that same time
17 frame, Plaintiff repeatedly reported that he was not “limited in routine8 activities because
18 of any impairment or health problem[.]” AR 484–85 (April 30, 2015); AR 475–76 (Dec.
19 2, 2015); AR 461–62 (May 26, 2016); AR 445, 448–49, 630 (July 17, 2017); AR 439–40,
20 621–22 (Aug. 28, 2017); AR 430–31, 612 (Nov. 15, 2017); AR 417, 598 (Jan. 31, 2018);
21 AR 402 (Mar. 19, 2019); AR 388, 569 (Apr. 8, 2019). Plaintiff reported “good general
22 overall feeling/health.” AR 484–85 (April 30, 2015); AR 461–62 (May 26, 2016); AR 445,
23 448–49 (July 17, 2017); AR 430–31, 612 (Nov. 15, 2017). Plaintiff often rated his pain as
24 “0/10.” AR 461–62 (May 26, 2016); AR 430–31, 612 (Nov. 15, 2017); AR 388, 569 (Apr.
25

26
8 Based on Plaintiff’s testimony about his prior work and studies, typing would be a routine
27
activity. For example, on April 3, 2019, Plaintiff reported that he “did lots of typing while
28 doing data processing.” AR 923.
1 8, 2019). Of note, Plaintiff’s September 9, 2019, Disability Appeal Report, lists a myriad
2 of his symptoms in detail, but does not mention anything about hand pain. AR 264; see AR
3 942 (on September 12, 2019, Plaintiff reported to Dr. Balfour that, for many years, his hand
4 pain radiated and was associated with “numbness in digits and weakness in grip”).
5 There is also evidence in the record that Plaintiff did not take medication for his
6 pain, which is inconsistent with his claims regarding the severity of the pain and its alleged
7 worsening. For example, on May 20, 2019, Plaintiff stated that he was not taking any
8 prescription or non-prescription medications, AR 249, although the prior month, Dr.
9 Balfour had stated that Plaintiff could take over the counter NSAIDs for hand pain relief,
10 if needed. AR 925. On September 9, 2019, Plaintiff reported that, as of July 2019, he is not
11 “currently taking any medications (prescription or non-prescription),” AR 266, although
12 the prior month, Dr. Balfour had stated that Plaintiff could take over the counter NSAIDs
13 for hand pain relief, if needed. AR 944. In Plaintiff’s March 17, 2020, Disability Appeal
14 Report, Plaintiff reported that he is not “currently taking any medications (prescription or
15 non-prescription),” AR 276, although the prior month, Nurse Practitioner Joanne Jacalan
16 had stated that Plaintiff could take over the counter NSAIDs for his hand pain relief, if
17 needed, AR 985–86.
18 At the hearing, Plaintiff testified that he needed hand limitations regarding typing,
19 picking up items, and the weight of the items. AR 133–34. Plaintiff also testified that he
20 can type slowly and his right index finger is stiff, noting that he would need a break every
21 40-minutes to an hour, lasting 30-40 minutes. AR 134. Despite all the inconsistencies9
22
23
24
9 The Court notes that in his first ground for appeal, Plaintiff represented to the Court that
25 the ALJ should have adopted all aspects of Dr. Balfour’s, Dr. Michelotti’s, and Dr.
Laiken’s opinions since he found them persuasive, and any deviance should be considered
26
a rejection. Dr. Michelotti’s and Dr. Laiken’s opinions both expressly state that “claimant’s
27 allegations are partially credible as the evidence in file does establish the existence of
impairment. However, it is not to the severity level alleged.” AR 144, 160.
28
1 mentioned above, the ALJ did consider these limitations in formulating the RFC, which
2 limited Plaintiff to frequently handling and fingering with the bilateral hands, and no
3 forceful gripping, grasping, or torquing. AR 35.
4 C. Discussion
5 Here, the ALJ gave the following reasons for discounting Plaintiff’s subjective
6 symptom statements and testimony: (1) Plaintiff’s statements about the intensity,
7 persistence, and limiting effects “are not entirely consistent with the medical evidence and
8 other evidence in the record for the reasons explained in this decision,” and (2) “Plaintiff’s
9 activities of daily living were inconsistent with the claimant’s statements concerning the
10 alleged intensity, persistence, and limited effects of symptoms.” AR 36, 40.
11 Relating to the first reason, although it can be inferred that the conservative
12 treatments repeatedly mentioned are what the ALJ is referring to, the Ninth Circuit has
13 rejected this language as not sufficiently clear and convincing. Lambert v. Saul, 980 F.3d
14 1266, 1277 (9th Cir. 2020) (“The ALJ noted generically that ‘the claimant’s statements
15 concerning the intensity, persistence and limiting effects of her symptoms are not entirely
16 consistent with the objective medical and other evidence for the reasons explained in this
17 decision.’ But this boilerplate statement by way of introductory remark, which is routinely
18 included in ALJ decisions denying benefits, did not identify what parts of the claimant’s
19 testimony were not credible and why.”); see Treichler v. Comm’r of SSA, 775 F.3d 1090,
20 1103 (9th Cir. 2014) (same).
21 Relating to the second reason, the ALJ did provide clear and convincing reasons.
22 The ALJ found that Plaintiff’s ability to pursue his Bachelor’s degree in computer science
23 full-time until May 2017, for about 1 year about being laid off, and maintaining a GPA of
24 3.98 or 4.0, was inconsistent with his subjective symptom statements of “not look[ing] for
25 work since finishing college because he has issues with his hands,” i.e., being able to “type,
26 but that his right index finger is stiff and that he has to take a [30 minute to 1 hour] break
27 after 40-45 minutes or up to 1 hour of typing.” AR 36, 40. The ALJ pointed to the record,
28 where, in May 2018, Plaintiff reported to a VA provider “that he had another 6 months to
1 use on the G.I. bill, which he was planning to use, but that he was not enrolled at that time.”
2 AR 36; see AR 771 (On May 17, 2018, Dr. Misa Hidaka reported that, “[a]fter military, he
3 worked in IT until 2/2016, when he was laid off. He also attended school completing his
4 Bachelors degree in computer science. He has another 6 mo[nth]s to use on the GI bill, and
5 plans to use that, but not currently enrolled.”). The ALJ also explained that “there is little,
6 if any, evidence of significant worsening of these issues after his successful work and
7 college.” AR 37 (noting Dr. Balfour’s conservative treatment recommendations in 2019 of
8 wrist splints or a possible steroid injection).
9 The Court finds that these reasons are sufficiently specific and are supported by
10 substantial evidence. The ALJ reasonably found Plaintiff’s ability to complete full-time
11 college courses with exemplary marks in a field that necessarily requires substantial typing
12 and use of hands, during the period he alleged he was disabled, was inconsistent with his
13 allegations of severe problems using his hands. The ALJ’s conclusion that Plaintiff’s
14 statements were inconsistent—i.e., he alleged worsening of symptoms when there is not
15 evidence of such—is supported by substantial evidence. See, e.g., AR 484–85, 475–76,
16 461–62, 445, 448–49, 630, 439–40, 621–22, 430–31, 612, 417, 598, 402, 388, 569
17 (consistently stating he was not “limited in routine activities because of any impairment or
18 health problem” between 2015 and 2019). Further, “evidence of ‘conservative treatment’
19 is sufficient to discount a claimant’s testimony regarding severity of an impairment.”
20 Parra, 481 F.3d at 750; see AR 37 (ALJ specifically mentioning Dr. Balfour’s conservative
21 treatment measures upon diagnosis of cervical radiculopathy and bilateral CTS as
22 inconsistent with Plaintiff’s testimony that his symptoms worsened).
23 Even if the ALJ did err here, it would be harmless. First, the ALJ assigned an RFC
24 that provided for substantial limitations and incorporated a considerable number of
25 Plaintiff’s allegations. These limitations included a restriction to a significantly curtailed
26 range of exertionally “light” work with significant limitations in reaching, handling, and
27 fingering, as well as a total preclusion of forceful gripping, grasping, and torquing. AR 35.
28
1 || While the ALJ did not adopt the totality of Plaintiff's allegations as restrictions within the
2 || RFC, he has heavily incorporated many of those allegations.
3 Second, even though the ALJ’s first reason for discrediting Plaintiff's hand pain and
4 ||limitation statements was impermissibly boilerplate, the ALJ’s second reason was
5 || sufficiently specific, clear and convincing to render the error “harmless, because the ALJ’s
6 || remaining reasoning and ultimate credibility determination were adequately supported by
7 || substantial evidence in the record.” Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d
8 1155, 1162 (9th Cir. 2008) (citing Batson, 359 F.3d at 1195-97); Mukhtar Sou v. Berryhill,
9 || No. C18-5165-RSM, 2018 WL 4205064, at *2 (W.D. Wash. Sept. 4, 2018) (explaining
10 |/that even though one of the three reasons given by the ALJ for rejecting plaintiffs
11 testimony as not credible was an impermissible abuse of discretion, the error was harmless
12 || because one of the reasons given was permissible, and “the court does not need to uphold
13 ||every reason provided for discrediting a claimant as long as the remaining reasons are
14 || valid.”). Here, there is ample substantial evidence in the record to support the ALJ’s
15 || ultimate credibility determination.
vi. CONCLUSION
M7 For the reasons set forth above, pursuant to sentence four of 42 U.S.C. § 405(g), IT
18 IS HEREBY ORDERED that the Commissioner’s decision is AFFIRMED.
19
20 IT IS SO ORDERED.
21 Dated: September 30, 2022
22 [Wow H. Kolar
74 Honorable Allison i. Goddard
United States Magistrate Judge
24
25
26
27
28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10086476. Public record. Not legal advice.