Archie v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

TAMI A.,1

Plaintiff, Civ. No. 3:23-cv-00067-MK

v. OPINION AND ORDER

MARTIN O’MALLEY,

Commissioner of Social Security

Defendant.

______________________________________

KASUBHAI, Magistrate Judge:

Plaintiff Tami A. (“Plaintiff”) brings this action for judicial review of the Commissioner

of Social Security’s (“Commissioner”) decision denying her applications for Supplemental

Security Income (SSI) and Disability Insurance Benefits (DIB) under Titles II and XVI of the

Social Security Act (“the Act”). This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c).

For the reasons below, the Commissioner’s final decision is affirmed.

1 In the interest of privacy, this opinion uses only the first name and the initial of the last name of

the non-governmental parties in this case.

PROCEDURAL BACKGROUND

Plaintiff’s claims for SSI and DIB were denied initially and upon reconsideration. Tr. 117-

38. She requested an administrative hearing, an appeared before an administrative law judge (ALJ)

on March 8, 2022. Tr. 40-65. In a written decision dated March 22, 2022, the ALJ denied Plaintiff’s

claim for benefits. Tr. 14-31. The Appeals Council denied Plaintiff’s subsequent petition for

review, rendering the ALJ’s decision final. Tr. 1-6. This appeal followed.

FACTUAL BACKGROUND

Born in 1977, Plaintiff was 42 years old on the amended alleged disability onset date. Tr.

30.2 She alleged disability as of June 4, 2019, due to combined impairments of fibromyalgia, loose

vertebra causing muscle and nerve damage and pain, post-traumatic stress disorder (“PTSD”),

hypothyroidism, collapsed arches in both feet and seizures. Tr. 295.

LEGAL STANDARD

The court must affirm the Commissioner’s decision if it is based on proper legal standards

and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d

498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.

Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh “both the evidence

that supports and detracts from the [Commissioner’s] conclusion.” Martinez v. Heckler, 807 F.2d

771, 772 (9th Cir. 1986). “Where the evidence as a whole can support either a grant or a denial,

[the court] may not substitute [its] judgment for the ALJ’s.” Massachi v. Astrue, 486 F.3d 1149,

1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680–81 (9th

2 “Tr.” refers to the Transcript of the Social Security Administrative Record, ECF No. 11, provided

by the Commissioner.

Cir. 2005) (holding that the court “must uphold the ALJ’s decision where the evidence is

susceptible to more than one rational interpretation”). “[A] reviewing court must consider the

entire record as a whole and may not affirm simply by isolating a specific quantum of supporting

evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

The initial burden of proof rests upon the claimant to establish disability. Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate

an “inability to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected . . . to last for a continuous period of not

less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

The Commissioner has established a five-step process for determining whether a person is

disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the

Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so,

the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). At

step two, the Commissioner determines whether the claimant has a “medically severe impairment

or combination of impairments.” Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c),

416.920(c). A severe impairment is one “which significantly limits [the claimant’s] physical or

mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the

claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines

whether the impairments meet or equal “one of a number of listed impairments that the

[Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.; 20

C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not,

the analysis proceeds. Yuckert, 482 U.S. at 141.

At this point, the Commissioner must evaluate medical and other relevant evidence to

determine the claimant’s “residual functional capacity” (“RFC”), which is an assessment of work-

related activities that the claimant may still perform on a regular and continuing basis, despite any

limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)–(c), 416.920(e),

416.945(b)–(c). At the fourth step, the Commissioner determines whether the claimant can perform

“past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the

claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts

to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish

that the claimant can perform other work that exists in significant numbers in the national

economy. Id. at 142; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the Commissioner meets

this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

THE ALJ’S DECISION

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since June 4, 2019, the amended alleged onset date. Tr. 17. At step two, the ALJ determined that

Plaintiff had the following severe impairments: left shoulder partial thickness tear, tendinosis,

arthrosis and bursitis; fibromyalgia; obesity; psychogenic pseudo-seizures; depression; anxiety;

attention deficit hyperactivity disorder (ADHD); and PTSD. Tr. 17. The ALJ also found that

Plaintiff had the non-severe impairments of restless leg syndrome, acute pyelonephritis, and a right

ankle sprain, but that there was nothing to show these conditions caused significant vocational

limitations. Id.

At step three, the ALJ found Plaintiff did not have an impairment or combination of

impairments that met or equaled any listings in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 18.

Prior to step four, the ALJ determined that, despite her impairments, Plaintiff retained the

RFC to perform light work with the following limitations: she can never crawl or climb ladders,

ropes, or scaffolds. She can occasionally climb ramps and stairs, stoop, kneel, and crouch. With

the dominant left upper extremity, she can occasionally reach overhead and frequently reach in all

other directions. She can tolerate occasional exposure to extreme cold and vibration. She can

tolerate no exposure to hazards such as unprotected heights or moving mechanical machinery. She

can understand, remember, and carry out simple, routine, and detailed tasks that can be learned in

30 days or less. She can never perform detailed tasks that require more than 30 days to learn. She

can tolerate a routine work setting involving no more than occasional workplace changes. She can

never perform rapid pace assembly line work. She can tolerate occasional superficial interaction

with the general public; that is, she can work in the vicinity of the public, but she cannot be required

to interact with the public as an element of the job. She can tolerate occasional interaction with

coworkers, but not in a cooperative or team effort. Tr. 19.

At step four, the ALJ found that Plaintiff is capable of performing past relevant work as a

food service worker because this work does not require the performance of work-related activities

precluded by Plaintiff’s RFC. Tr. 29. At step five, the ALJ found that based on Plaintiff’s age,

education, work experience, and residual functional capacity, she could perform jobs that existed

in significant numbers in the national economy, including housekeeper, small products assembler,

and agricultural produce sorter. Tr. 30. The ALJ therefore concluded that Plaintiff was not

disabled. Tr. 31.

In this appeal, Plaintiff argues that the ALJ erred by (I) formulating the RFC without

accounting for all of Plaintiff’s limitations related to her pseudo seizures; and (II) failing to

consider and evaluate all impairments at Step Two.

DISCUSSION

I. RFC Formulation

The ALJ did not err in his formation of the RFC. Plaintiff first argues that the ALJ erred

because the RFC failed to properly account for the full extent of Plaintiff’s deficiencies caused by

her pseudo seizures. Pl. Br., at 3 (ECF 15). Plaintiff next argues the ALJ failed to fully address

Plaintiff’s mental deficiencies in adaptive functioning, as required by SSR 96-8p. Id. at 12. Lastly,

Plaintiff argues that by failing to obtain a consultative examination, the ALJ formed the RFC

without complete evidence of Plaintiff’s mental impairments. Id. at 13.

A. Pseudo Seizures

The ALJ did not err in formulating the RFC. An RFC assessment must “[c]ontain a

thorough discussion and analysis of the objective medical and other evidence, including the

individual’s complaints of pain and other symptoms and the adjudicator’s personal observations,

if appropriate.” SSR 96-8p. To the extent the evidence could be interpreted differently, it is the

role of the ALJ to resolve conflicts and ambiguity in the evidence. Morgan v. Comm’r Soc. Sec.

Admin., 169 F.3d 595, 599-600 (9th Cir. 1999). That said, an ALJ, not a doctor, is responsible for

determining a plaintiff’s RFC. 20 C.F.R. § 404.1546(c); Rounds v. Comm’r Soc. Sec Admin., 807

F.3d 996, 1006 (9th Cir. 2015) (noting that “the ALJ is responsible for translating and

incorporating clinical findings into a succinct RFC”). The ALJ’s findings of fact, as embodied in

the RFC, are conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g); Ukolov v.

Barnhart, 420 F.3d 1002 (9th Cir. 2005). When the evidence will support more than one rational

interpretation, the Court must defer to the Commissioner’s interpretation. See Burch, 400 F.3d at

679. Consequently, the issue before the court is not whether the Commissioner could reasonably

have reached a different conclusion, but whether the final decision is supported by substantial

evidence.

Plaintiff takes issue with the ALJ’s formulation of the RFC because it fails to fully account

for the triggers and situations that spur her pseudo seizures. Plaintiff argues the RFC fails to

account for her inability to cope with stress and various situational stressors. Specifically, that it

fails to account for any environmental triggers such as lighting or loud noises, and that some of

the aspects of the RFC are “wholly incompatible” with actions that trigger her seizures. Pl. Br., at

4-10 (ECF 15). Plaintiff reasons that the ALJ’s explanation completely ignored the triggers she

highlighted in her subjective symptom testimony. Id. at 9, 12-13.

The ALJ’s formation of Plaintiff’s RFC properly considered Plaintiff’s subjective

symptom testimony. Plaintiff argues the ALJ “provided no explanation with specificity as to

whether he accepted or rejected [Plaintiff]’s statements” regarding her seizures. Pl. Br., at 11 (ECF

15). However, the ALJ properly considered all of the available evidence in the record when

evaluating Plaintiff’s subjective symptom testimony, including a lengthy discussion of Plaintiff’s

reports of pseudo seizures, as well as treatment history and clinical findings. Tr. 20-29. Not only

did the ALJ identify several inconsistencies between Plaintiff’s allegations of her physical and

mental conditions with objective medical evidence, he also found her activities of daily living

(ADLs) to be “inconsistent with and not limited to the extent one would expect, given the

complaints of disabling symptoms and limitations.” Tr. 26.

First, regarding Plaintiff’s pseudo seizures, the ALJ found “there is no evidence in the

medical record of even the frequency of the seizures she currently alleges . . . there is no evidence

of her reporting to medical providers the long-lasting postictal states she alleges . . .” Tr. 21.

Plaintiff alleges she has one mild seizures every day and one “grand mal” seizure every week. Tr.

54. The court agrees that the record is absent of any objective evidence that Plaintiff has seizures

daily. In fact, Kevin J. Jamison, MD, noted that it was “not clear that the events today were in fact

seizures, they deftly do not sound like generalized tonic-clonic seizures as the patient is able to

describe feeling the seizure come on and being awake the entire experience.” Tr. 529. The ALJ

then goes on to discuss various instances in the record where she had normal EEG and CT scans,

reported having pseudo seizures but improved after taking Lamictal, and then not having any at all

after starting massage therapy. Tr. 21; see Tr. 784 (“Pt had normal head imaging and lab work”),

790, 793, 838, 855, 896, 941, 945, 1351.

Second, the ALJ found inconsistency with Plaintiff’s subjective complaints regarding her

seizures and her ADLs. Plaintiff argues the ALJ “provided no reasons to reject Plaintiff’s specific

testimony regarding seizures,” and “ignored the entirety of the evidence involving seizure-based

restrictions, including [her] statements without discussion in error.” Pl. Br., at 12 (ECF 15).

However, the ALJ did not completely ignore Plaintiff’s testimony. The ALJ was permitted to

consider daily living activities in his credibility analysis. As this court previously has explained, if

a claimant engages in numerous daily activities involving skills that could be transferred to the

workplace, the ALJ may discredit the claimant’s allegations upon making specific findings relating

to those activities. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Morgan v. Apfel,

169 F.3d 595, 600 (9th Cir. 1999) (claimant’s ability to fix meals, do laundry, work in the yard,

and occasionally care for his friend’s child was evidence of claimant's ability to work). Here, the

ALJ found that Plaintiff “has remained quite active, socially interactive and independent in spite

of her alleged physical and mental symptoms.” Tr. 26. He cites to instances where she joined and

was active at a gym, walked and drove every day, went on vacations, went horseback riding, was

the caregiver for her disabled son who lived with her at the time, cleaned and organized her

apartment, dated, used social media, and went shopping. Tr. 27. The ALJ specifically found her

activities inconsistent with her own testimony at the hearing. Id. At the hearing she stated she could

not use a computer, does not drive, that her children are her caregivers, and that her trip to Arizona

was because her medical providers suggested her conditions might improve in warmer climate. Tr.

56, 61-63. However, the ALJ found the record showed that she has used a computer for social

media; she has driven during the relevant period despite not having license and registration; that

she has been her adult children’s caregiver during the relevant period; and that she went to Arizona

to visit a friend who wanted to reconnect, rather than it being a suggestion from a medical provider.

Tr. 27, citing Tr. 1868, 1877, 1889, 1914, 1917, 1951-53, 1959-60, 1735, 1738, 1740, 1986, 2000.

Therefore, the ALJ did not ignore Plaintiff’s testimony, but instead drew reasonable conclusions

from the numerous inconsistencies between her testimony and the record. In turn, the ALJ did not

commit harmful error.

Next, Plaintiff argues that the ALJ did not sufficiently address her mental deficiencies in

adaptive functioning, or how her limitations caused by seizures were accounted for in the RFC

using the three factors listed in SSR 96-8p. Id. The ALJ, though not explicitly citing to SSR 96-

8p, did follow the requirements of SSR 96-8p. The ALJ discussed in detail Plaintiff’s subjective

and objective evidence, and cited to several instances in the record to support his conclusions. The

ALJ then properly translated and incorporated this evidence into an RFC as required by statute. 20

C.F.R. §§ 416.913(a), 416.945(a)(3); Rounds v. Comm’r Soc. Sec Admin., 807 F.3d 996, 1006 (9th

Cir. 2015). The ALJ is not required to recite “magic words” or “incantations” in rejecting evidence.

Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). “A reviewing court [is] not deprived of

[its] faculties for drawing specific and legitimate inferences from the ALJ’s opinion.” Id.; Towne

v. Berryhill, 717 F. App’x 705, 707 (9th Cir. 2017) (citing Batson v. Comm’r of the SSA, 359 F.3d

at 1190, 1193 (9th Cir. 2004) (if the ALJ provides enough information that the reviewing court

can draw reasonable inferences from the record in support of the ALJ’s findings, then the ALJ’s

findings should be upheld)). The ALJ drew a reasonable inference that if Plaintiff cannot tolerate

stress, or the “demands of work,” this can be accounted for by placing adaptation limitations in the

RFC. The limitations the ALJ chose were precluding her from being exposed to no more than

occasional workplace changes and no rapid place assembly line work. Id. at 4-5; SSR 85-15.

Plaintiff states that there is “no evidence established that [Plaintiff]’s stress intolerance was caused

by either of these factors.” Id. at 5. The Commissioner responds by stating “Plaintiff seems to be

conflating stressful situations in her personal life with work-related limitations,” and the court

agrees. The Commissioner cites 20 C.F.R. § 416.945(c) and 20 C.F.R. § 416.945(a) to emphasize

the mental and physical demands of work that the ALJ must consider. Plaintiff indicates in various

instances in the record that the stressors of life spur her seizures; Specifically, the end of a

relationship, the flooding of her apartment which caused damage to her laptop, using her rent

money to fix her car, and continuous relationship issues with her daughter and other children. See

Tr. 1732, 1734, 1738, 1846, 1883, 1978. Here, the ALJ was not required to consider Plaintiff’s

stressful situations within her personal life. Instead, the ALJ properly considered all the various

types of evidence in the medical record, including objective evidence, treatment history, and

clinical findings to formulate an RFC that would limit Plaintiff from experiencing work-related

stressors.

B. Consultative Examination

Contrary to Plaintiff’s argument, a review of the ALJ’s decision show that he did not

commit harmful error by denying Plaintiff’s on record request for a post-hearing psychological

evaluation. The ALJ reasoned that because “the medical evidence of record contains counseling

records as well as observations by the claimant’s medical providers reporting on the claimant’s

mental status,” there was no need for additional reporting. Tr. 14. Using the medical evidence of

record, the ALJ found inconsistencies between Plaintiff’s allegations of mental conditions

preventing her from working and findings in the record. He stated “the claimant’s mental status

examination findings throughout the record are largely normal with minimally recorded difficulties

with attention or memory other than by claimant’s own report. She also presents with normal

interactions with her providers with little evidence of social anxiety.” Tr. 24. To support this

conclusion, the ALJ cited to progress notes from her primary care provider, chart notes from her

chiropractor, progress notes from her therapist, and emergency room follow-up visit notes. Tr. 24-

26; Tr. 868, 1241, 1340, 1373, 1445, 1450, 1615, 1622, 2157, 2207.

Plaintiff argues the record contains no “psychological examination of [Plaintiff], or an

opinion from a physician after evaluating Plaintiff’s mental impairments and RFC.” Pl. Br., at 13

(ECF 15). Plaintiff is correct in that there is no opinion from a physician evaluating her vocational

capacity based on her mental impairments; However, the record does contain treatment notes and

observations from various medical providers regarding Plaintiff’s mental condition and daily life.

The record contains hundreds of pages of observations from Plaintiff’s Qualified Mental Health

Professional who detailed their sessions. Tr. 1815-2050. These sessions largely discuss Plaintiff’s

mental health struggles due to stress from interpersonal relationships with family. See Tr. 1882,

1891, 1975-78, 2036. Furthermore, despite Plaintiff’s argument that there was no psychological

examination of her symptoms, the record shows that Plaintiff did meet with a psychologist. Tr.

1340. Heather Tahler, PsyD, met with Plaintiff, where Plaintiff directly asked her to write a

prescription for anti-depressants because she “needed to speak with [the psychologist] before

attaining anti-depressants.” Tr. 1445. The psychologist educated Plaintiff about the role of

providers, specifically educating her about “not prescribing medication.” Id. Plaintiff then

indicated, as the ALJ states, she did not want any further interventions or appointments with the

psychologist. Tr. 24-25. Using the medical evidence of record, the ALJ concluded Plaintiff’s

“limited mental health treatment history, her overall normal performance on mental status

examinations, and her largely cooperative interactions with her providers mitigate against more

restrictive cognitive, social, or adaptive limitations than those set forth in the [RFC].” Tr. 26. Thus,

the ALJ considered Plaintiff’s limitations together with the medical information available to form

an RFC that he was responsible for making. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir.

2001) (determining RFC “is the responsibility of the ALJ”) (internal citation omitted). The “ALJ

was not required to seek input from a medical expert because the ALJ was able to make a

determination supported by substantial evidence.” Foster v. Astrue, Case No. CV-09-307-JPH,

2011 U.S. Dist. LEXIS 51672, 2011 WL 1807426, at *8 (E.D. Wash. May 11, 2011). As explained

in Foster, “[t]here are two instances where the opinion medical expert is required: (1) when

equivalence to a listing is at issue at step three; and (2) when the record is ambiguous regarding

the onset date. Id. See SSR 83-20; Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590

(9th Cir. 1998). Neither of the circumstances is present here. Id. The ALJ did not find the record

inadequate, insufficient, or ambiguous. Tr. 14-15, 24-26. Neither does the court. As Plaintiff has

not provided argument to rebut the analysis provided in Foster, the court rejects Plaintiff’s

argument that the ALJ’s RFC was improperly formulated.

II. Evaluation of Primary Headache Disorder at Step Two

The ALJ did not err in evaluating Plaintiff’s headaches at Step Two. At Step Two of the

sequential evaluation, the ALJ determines whether the claimant has a severe, medically

determinable impairment or combination of impairments that meets the durational requirement.

See 20 C.F.R. § 404.1520(a)(4)(ii). In assessing severity, the ALJ must determine whether the

claimant’s medically determinable impairment or combination of impairments significantly limits

her ability to do basic work activities. See Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005).

Step Two is a “de minimis screening device to dispose of groundless claims.” Smolen v. Chater,

80 F.3d 1273, 1290 (9th Cir. 1996). An impairment or combination of impairments may be found

“not severe only if the evidence establishes a slight abnormality that has no more than a minimal

effect on an individual’s ability to work.” Webb, 433 F.3d at 686 (quoting Smolen, 80 F.3d at

1290). The ALJ “may find that a claimant lacks a medically severe impairment or combination of

impairments only when [that] conclusion is ‘clearly established by medical evidence.’” Webb, 433

F.3d at 687 (citation omitted). Harmless error analysis applies to the Step Two determination.

Davenport v. Colvin, 608 F. App’x 480, 481 (9th Cir. 2015); Burch v. Barnhart, 400 F.3d 676,

682 (9th Cir. 2005).

The Ninth Circuit has held when the ALJ has resolved Step Two in a claimant’s favor, any

error in designating specific impairments as severe does not prejudice a claimant at Step Two if

the ALJ considered the impairments when formulating his assessment of Plaintiff’s RFC. Burch

v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (any error in omitting an impairment from the

severe impairments identified at Step Two was harmless when Step Two was resolved in

claimant’s favor). See also Buck v. Berryhill, 869 F.3d 1040, 1049 (“[S]tep two was decided in

[the plaintiff’s] favor after both hearings. He could not possibly have been prejudiced. Any alleged

error is therefore harmless and cannot be the basis for a remand.”). Such is the case here, as the

ALJ found in favor of Plaintiff at Step Two and evaluated her headaches at Step Three. Tr. 19.

The ALJ evaluated Plaintiff’s headaches at Step Three when discussing her RFC. Tr. 20-

22, 25. To establish the existence of a primary headache disorder, the evidence must document a

primary headache disorder diagnosis from an acceptable medical source, who must also provide

evidence that the source reviewed the claimant’s medical history, conducted a physical

examination, and made the diagnosis of primary headache disorder only after excluding alternative

medical and psychiatric causes for the claimant’s symptoms. SSR 19-4p. Such evidence was not

present in the record. The ALJ noted although Plaintiff complained of headaches, she also told

providers on several occasions after her amended alleged onset date that her headaches were

responsive to medication and have improved. See, e.g., Tr. 855, 1373, 1437, 1686. Plaintiff failed

to provide any reasoning as to how her intermittent headaches would affect her work performance.

In the hearing, Plaintiff testified that her headaches remain “mild” as long as she stays “airheaded,”

and that they get worse with increased concentration and general activity. Tr. 53. The only medical

providers who discussed Plaintiff’s vocational limitations due to her headaches were Qualified

Mental Health Professionals Sara Mannino and Rae Daneke. They opined that Plaintiff “would

need to take a break every 60 to 90 minutes for at least 15 minutes” due, in part, to her headaches.

Tr. 28, citing Tr. 2078. However, the ALJ found these opinions unpersuasive because “Ms.

Mannino indicated in her treatment notes that she filled the form out with [Plaintiff] because she

was not familiar with [her] capacity to complete each activity listed in the assessment,” and that

they “‘talked through each item on detail before setting on a rating.’” Tr. 29. From this, the ALJ

concluded that such assessment appears to be Plaintiff’s own assessment of her capacity, rather

than the observed opinion of the provider. At step two, the burden of proof is squarely on the

Plaintiff to establish the existence of any medically determinable impairment(s) and that such

impairments(s) are severe. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). This burden

of proof cannot be substantiated only by a claimant’s statement of symptoms or diagnosis. 20

C.F.R. § 416. 908. Plaintiff failed to satisfy her burden of proof.

As noted, the ALJ resolved Step Two in Plaintiff's favor. In addition, the ALJ considered

Plaintiff’s headaches and concluded they would not preclude work activity. The court finds that

the ALJ did not err in his consideration of Plaintiff’s headaches. Accordingly, reversal is not

warranted.

CONCLUSION

For the reasons stated above, the Commissioner’s final decision is AFFIRMED.

IT IS SO ORDERED.

DATED this 8th day of March 2024.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (He / Him)

United States Magistrate Judge