# Diaz v. O'Malley

> District Court, S.D. California · February 14, 2025

URL: https://www.frixlaw.com/law-library/cases/10800857

## Case

- **Court:** District Court, S.D. California
- **Decided:** February 14, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 MARIE BETH D., Case No.: 3:24-cv-00525-W-AHG

12 Plaintiff,
REPORT AND
13 v. RECOMMENDATION REGARDING
JOINT MOTION FOR JUDICIAL
14 MICHELLE KING, Acting Commissioner
REVIEW
of Social Security, 1
15

[ECF No. 12]
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Defendant.
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26 1 Michelle King became the Acting Commissioner of the Social Security Administration
27 on January 20, 2025. Although Plaintiff originally brought this action against Former
Commissioner Martin O’Malley, this case may properly proceed against Michelle King
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1 Plaintiff Marie Beth D. (“Plaintiff”) filed this action on March 20, 2024, seeking
2 review of the Commissioner of Social Security’s (“Commissioner”) denial of her
3 application for disability benefits. ECF No. 1. Pursuant to the Court’s Scheduling Order,
4 the parties filed a Joint Motion for Judicial Review on September 27, 2024, stating their
5 positions on the disputed issues in the case. ECF No. 12. This matter is now before the
6 Court for a Report and Recommendation (“R&R”) on the Joint Motion for Judicial Review
7 pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.2(d) of the United States District
8 Court for the Southern District of California.
9 After a thorough review of the parties’ submissions, the administrative record, and
10 applicable law, the undersigned RECOMMENDS that the Court AFFIRM the
11 Commissioner’s denial of disability benefits.
12 I. PROCEDURAL BACKGROUND
13 Plaintiff filed an application for disability insurance benefits pursuant to Title II of
14 the Social Security Act on July 7, 2022. Certified Administrative Record (“AR”) AR 22,
15 273. Plaintiff also filed an application for supplemental security income pursuant to Title
16 XVI on July 7, 2022. AR 22, 283. In both applications, Plaintiff alleged a disability onset
17 date of December 2, 2018. AR 22, 269, 275. The Commissioner denied Plaintiff’s claims
18 for disability insurance benefits and supplemental security income upon initial review on
19 December 22, 2022, and again upon reconsideration on March 2, 2023. AR 174, 181.
20 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which took
21 place telephonically on August 28, 2023. AR 49-86.
22 On December 21, 2023, the ALJ issued an unfavorable decision denying Plaintiff’s
23 current applications, finding that although Plaintiff could not perform her past relevant
24 work, she could perform work that exists in significant numbers in the national economy,
25 and had thus not been disabled from her alleged disability onset date through the date of
26 the ALJ’s decision. AR 35-37.
27 Plaintiff requested review of the ALJ’s decision by the Appeals Council. AR 3. The
28 Appeals Council denied Plaintiff’s request for review on February 13, 2024, making the
1 ALJ’s decision the final decision of the Commissioner. AR 3-5. Plaintiff timely appealed
2 the denial to this Court for judicial review on March 20, 2024. ECF No. 1; 42 U.S.C. §
3 405(g).
4 II. STANDARD OF REVIEW
5 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the
6 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed
7 only if it is not supported by substantial evidence or if it is based upon the application of
8 improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010).
9 Substantial evidence means “such relevant evidence as a reasonable mind might
10 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
11 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The
12 standard requires “more than a mere scintilla” of evidence, “but less than a preponderance.”
13 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). The standard is
14 “highly deferential.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir.
15 2009). Thus, “‘[w]here evidence is susceptible to more than one rational interpretation,’
16 the ALJ’s decision should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)
17 (quoting Burch v. Barnhart, 400 F.3d at 676, 679 (9th Cir. 2005)). However, the Court
18 “must consider the entire record as a whole, weighing both the evidence that supports and
19 the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply
20 by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995,
21 1009 (9th Cir. 2014) (internal quotation marks omitted)). The ALJ is responsible for
22 determining credibility and resolving conflicts in medical testimony and is also responsible
23 for resolving any ambiguities in the record. Magallanes v. Bowen, 881 F.2d 747, 750 (9th
24 Cir. 1989). The Court will “review only the reasons provided by the ALJ in the disability
25 determination and may not affirm the ALJ on a ground upon which he did not rely.” Id.;
26 see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an
27 administrative order must be judged are those upon which the record discloses that its
28 action was based.”).
1 The Court may also overturn the Commissioner’s denial of benefits if the denial is
2 based on legal error. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014).
3 However, even if the Court finds the decision was based on legal error, a court may not
4 reverse an ALJ’s decision if the error is harmless, “which exists when it is clear from the
5 record that the ALJ’s error was inconsequential to the ultimate nondisability
6 determination.” Id. at 932 (internal quotations and citation omitted); see also Burch, 400
7 F.3d at 679 (citation omitted).
8 III. SUMMARY OF ALJ’S FINDINGS
9 A. The Five-Step Evaluation Process
10 The ALJ follows a five-step sequential evaluation process in assessing whether a
11 claimant is disabled. 20 C.F.R. § 404.1520;2 Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th
12 Cir. 1999). In the first step, the Commissioner must determine whether the claimant is
13 currently engaged in substantial gainful activity; if so, the claimant is not disabled, and the
14 claim is denied. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).
15 If the claimant is not currently engaged in substantial gainful activity, the second
16 step requires the ALJ to determine whether the claimant has a “severe” impairment or
17 combination of impairments significantly limiting her ability to do basic work activities,
18 and which has lasted or is expected to last for a continuous period of at least 12 months; if
19 not, a finding of nondisability is made and the claim is denied. Id. See also 20 C.F.R.
20

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2 Unless otherwise noted, all references to the agency regulations herein are to the
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regulations in effect at the time of the ALJ’s decision. See, e.g., SSR 16-3, 2016 SSR
23 LEXIS 4 n.27 (S.S.A. 2016) (“When a Federal court reviews our final decision in a claim,
we expect the court will review the final decision using the rules that were in effect at the
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time we issued the decision under review.”); Anne B. v. Comm’r, Soc. Sec. Admin., No.
25 1:18-CV-02146-HZ, 2019 WL 6976034, at *8 (D. Or. Dec. 20, 2019) (collecting cases for
the proposition that “[t]he applicable regulations are those in effect at the time the ALJ
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issued his decision”). The regulations governing Title II disability insurance benefits
27 (“DIB”) are located in 20 C.F.R. §§ 404.1 et seq. The regulations governing Title XVI
supplemental security income (“SSI”) are located in 20 C.F.R. §§ 416.101 et seq.
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1 § 404.1509 (setting forth the 12-month duration requirement). If the claimant has a
2 “severe” impairment or combination of impairments, the third step requires the ALJ to
3 determine whether the impairment or combination of impairments meets or equals an
4 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart
5 P, appendix 1; if so, disability is conclusively presumed, and benefits are awarded.
6 Lounsburry, 468 F.3d at 1114.
7 If the claimant’s impairment or combination of impairments does not meet or equal
8 an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation
9 process. The fourth step requires the ALJ to determine whether the claimant has sufficient
10 residual functional capacity (“RFC”) to perform her past work. Id. Therefore, the ALJ must
11 determine the claimant’s RFC before moving to step four.
12 An RFC is “an assessment of an individual’s ability to do sustained work-related
13 physical and mental activities in a work setting on a regular and continuing basis.” SSR
14 96-9p, 1996 WL 374184, at *1 (July 2, 1996). It reflects the most a claimant can do despite
15 her limitations. 20 C.F.R. § 404.1545(a)(1). An RFC assessment must include an
16 individual’s functional limitations or restrictions as a result of all of her impairments – even
17 those that are not severe (see 20 C.F.R. § 404.1545(a)(1)-(2), (e)) – and must assess her
18 “work-related abilities on a function-by-function basis.” SSR 96-9p, 1996 WL 374184, at
19 *1; see also Valentine, 574 F.3d at 690 (“an RFC that fails to take into account a claimant’s
20 limitations is defective”). An ALJ errs when he provides an incomplete RFC that ignores
21 or discounts “significant and probative evidence” favorable to a claimant’s position. Hill
22 v. Astrue, 698 F.3d 1153, 1161-62 (9th Cir. 2012).
23 An RFC assessment is ultimately an administrative finding reserved to the ALJ.
24 20 C.F.R. § 404.1527(d)(2). However, an RFC determination must be based on all of the
25 relevant evidence, including the diagnoses, treatment, observations, and opinions of
26 medical sources, such as treating and examining physicians. 20 C.F.R. § 404.1545. A court
27 must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal
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1 standards and substantial evidence in the record as a whole supports the decision. See
2 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
3 At step four of the disability analysis, if the ALJ determines a claimant has sufficient
4 RFC to perform past relevant work, the claimant is not disabled, and the claim is denied.
5 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). The claimant has the burden of
6 proving that she is unable to perform past relevant work at step four. Id. If the claimant
7 meets this burden, a prima facie case of disability is established. Id.
8 At step five, the burden then shifts to the ALJ to establish that the claimant is not
9 disabled because there is other work existing in “significant numbers” in the national or
10 regional economy the claimant can do, taking into account the claimant’s RFC, age,
11 education, and work experience. 20 C.F.R. § 404.1560(c)(1), (c)(2); see also 20 C.F.R.
12 § 404.1520(g)(1). The determination of this issue comprises the fifth and final step in the
13 sequential analysis. 20 C.F.R. § 404.1520; Tackett, 180 F.3d at 1099.
14 B. The ALJ’s Application of the Five-Step Process in This Case
15 At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
16 activity since her alleged disability onset date of December 2, 2018. AR 25. At step two,
17 the ALJ determined that Plaintiff had the severe impairments of bilateral peroneal
18 neuropathy at the knees and cervical degenerative disc disease. AR 25. After applying the
19 required “special technique” to evaluate mental impairments at step two, the ALJ
20 determined that Plaintiff has mild limitations in understanding, remembering, or applying
21 information; no limitation in interacting with others; and mild limitations in concentrating,
22 persisting, or maintaining pace. AR 26. The ALJ also determined that Plaintiff has mild
23 limitations in adapting or managing oneself. AR 26. See also 20 C.F.R. § 1520a(a)-(c)
24 (outlining the “special technique” for identifying and rating the degree of functional
25 limitation resulting from mental impairments at step two).
26 At step three, the ALJ determined that Plaintiff did not have an impairment or
27 combination of impairments that met or medically equaled the severity of one of the
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1 impairments in the Listing, noting in particular that he had considered Listings 1.15
2 (disorders of the skeletal spine) and 11.14 (peripheral neuropathy). AR 28.
3 Between steps three and four, the ALJ determined that Plaintiff had the residual
4 functional capacity (“RFC”) to perform sedentary work, as defined by 20 C.F.R.
5 §§ 404.1567(a) and 416.967(a), with certain postural limitations. AR 28. Specifically, the
6 ALJ determined that Plaintiff can perform occasionally postural activities, but she cannot
7 climb ladders, ropes, or scaffolds. AR 28. In addition, she cannot have concentrated
8 exposure to vibration, unprotected heights or hazardous machinery. AR 28.
9 At step four, the ALJ concluded that Plaintiff is not capable of performing her past
10 relevant work as an Informal Waitress (light, semi-skilled), Bartender (light, semi-skilled),
11 Warehouse Worker (medium, unskilled) or Medical Assistant (light, skilled). AR 35. The
12 ALJ reached this conclusion based on the testimony of the vocational expert, who opined
13 during the hearing that the demands of Plaintiff’s past relevant work would be precluded
14 by the RFC assigned by the ALJ. AR 35. The ALJ therefore proceeded to step five.
15 At step five, the ALJ considered that Plaintiff was a “younger individual” as of the
16 alleged disability onset date and Plaintiff has at least a high school education. AR 36. The
17 vocational expert testified that Plaintiff could perform the sedentary jobs of Account
18 Charge Clerk, Call Out Operator, and Lens Inserter. AR 36-37. Based on the vocational
19 expert’s testimony, the ALJ found that Plaintiff was “capable of making a successful
20 adjustment to other work that exists in significant numbers in the national economy,” so
21 therefore Plaintiff was not disabled. AR 37.
22 IV. DISCUSSION
23 Plaintiff brings four claims of error in the Joint Motion: 1) the ALJ failed to properly
24 analyze Plaintiff’s subjective symptom testimony; 2) the ALJ failed to properly evaluate
25 the medical opinion of Plaintiff’s treating provider, Dr. Frederic Martin; 3) the ALJ failed
26 to properly evaluate the medical opinion of the consultative examiner, Dr. Thomas
27 Schweller; and 4) the ALJ erroneously omitted mental limitations from the RFC and from
28 the hypothetical question posed to the vocational expert. ECF No. 12 at 3.
1 A. The ALJ Did Not Err in His Evaluation of Plaintiff’s Testimony
2 Plaintiff asserts that the ALJ erred in discounting her testimony regarding her
3 symptoms of pain and physical dysfunction. Defendant contends that the ALJ properly
4 evaluated Plaintiff’s symptom testimony based on the record evidence.
5 1. Legal Standard
6 An ALJ evaluating a claimant’s testimony regarding the extent of her symptoms and
7 impairments must follow a two-step inquiry. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th
8 Cir. 2014). First, an ALJ must assess whether there is objective medical evidence to support
9 the testimony. Id. If that is the case, and there is no evidence of malingering, an ALJ “can
10 only reject the claimant’s testimony about the severity of the symptoms if he gives
11 ‘specific, clear and convincing reasons’ for the rejection.” Id. (quoting Vasquez v. Astrue,
12 572 F.3d 586, 591 (9th Cir. 2009)). An ALJ must “specifically identify the testimony she
13 or he finds not to be credible ... and explain what evidence undermines that testimony.”
14 Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (quoting Treichler v. Comm’r of Soc.
15 Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)). An ALJ’s decision must be “sufficiently
16 specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s
17 testimony on permissible grounds and did not ‘arbitrarily discredit a claimant’s
18 testimony.’” Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991).3 “[A]n ALJ may
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3 On March 28, 2016, the Social Security Administration issued new guidance regarding
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how to evaluate a claimant’s subjective symptom testimony. See SSR 16-3p, 2016 WL
23 1119029 (Mar. 16, 2016); 2017 WL 5180304 (Oct. 25, 2017) (clarifying SSR 16-3p).
Additionally, effective March 27, 2017, the Social Security Administration updated the
24
relevant agency regulations regarding how a claimant’s symptoms are evaluated. See 20
25 C.F.R. § 404.159. Although the ALJ’s opinion was issued after these changes, the
jurisprudence governing the applicable two-step inquiry remains good law. See, e.g.,
26
Campbell v. Saul, 848 F. App’x 718, 721 (9th Cir. 2021) (applying the two-step inquiry in
27 a recent case appealing an ALJ’s decision from 2018, in which the newer regulations were
applied); Vooge v. Saul, 840 F. App’x 253, 254 (9th Cir. 2021) (same, in case involving an
28
1 not reject a claimant’s subjective complaints based solely on a lack of medical evidence to
2 fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680
3 (9th Cir. 2005). It is solely within the ALJ’s province to assess the credibility of the
4 claimant’s testimony. Id. A court is therefore “constrained to review the reasons the ALJ
5 asserts.” Id. (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)); Burrell
6 v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014).
7 2. Plaintiff’s Testimony
8 In an Exertion Questionnaire dated August 5, 2022, Plaintiff stated that she suffers
9 from neuropathy. AR 353. She described experiencing pain after walking half a mile.
10 AR 353. Though able to carry laundry and groceries, she requires two-hour rest periods or
11 naps during the day. AR 354-355.
12 At a telephonic hearing on August 28, 2023, Plaintiff provided further testimony
13 about her physical conditions. AR 51. Plaintiff described difficulty using the restroom—
14 experiencing “shooting pain” that feels like “needles” when she places her feet on the
15 ground. AR 63. Though Plaintiff can drive, she stated that “sometimes [] it hurts so bad
16 where I have to, like, pull over because just pushing my foot—putting the pressure on my
17 feet on the pedal hurts a lot.” AR 64. To deal with swelling of her feet, Plaintiff reported
18 elevating her legs waist-high and says she sits this way for most of the day. AR 65. Plaintiff
19 also described being able to sit for no more than 20 minutes before needing to get up, walk
20 around, or lie down. AR 68. Plaintiff finds it difficult to walk without a cane because her
21 knees or ankles may give out and requires rest after walking the distance of “three small
22 houses.” AR 68. She reported experiencing pain in her wrist, elbows, back and feet when
23 carrying anything over three pounds. AR 69. She also endures an itching sensation
24 underneath the skin of her hands and has issues grasping objects due to the shaking of her
25 hands. AR 69-70.
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n.5 (9th Cir. 2017) (noting SSR 16-3p is consistent with existing Ninth Circuit precedent
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1 Plaintiff described taking multiple medications, which led to severe side effects
2 including sleepiness. AR 66-67. Plaintiff stated that physical therapy and injections did not
3 provide relief. AR 66. Plaintiff is able to walk 10 or 20 steps to reach the ocean, where she
4 does feel relief when she immerses her feet. AR 59-60. She is also able to spend the
5 majority of her waking hours in a seated position. AR 61. Though Plaintiff uses a cane, she
6 testified that the cane was not prescribed by her treating provider, Dr. Martin. AR 70.
7 Additionally, Plaintiff could not recount her doctor recommending any type of surgery for
8 her back or cervical spine. AR 71.
9 3. The ALJ’s Assessment of Plaintiff’s Symptom Testimony
10 The RFC adopted by the ALJ takes into consideration some of Plaintiff’s symptoms.
11 AR 30. The ALJ limited Plaintiff to sedentary work with additional postural restrictions.
12 AR 28. Sedentary work is defined in 20 C.F.R. § 404.1567(a):
13 Sedentary work involves lifting no more than 10 pounds at a time and
14 occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a
15 certain amount of walking and standing is often necessary in carrying out job
16 duties. Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met.
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18 “Occasionally” means “occurring from very little up to one-third of the time.” SSR 83-10,
19 1983 WL 31251, at *5 (S.S.A. Jan. 1, 1983). For sedentary work, this means that “periods
20 of standing or walking should generally total no more than about 2 hours of an 8-hour
21 workday, and sitting should generally total approximately 6 hours of an 8-hour workday.”
22 Id. The ALJ explained in his decision that this RFC accounts for Plaintiff’s bilateral
23 peroneal neuropathy at the knees. AR 30. The limitation to sedentary work addresses
24 Plaintiff’s symptoms of being unable to walk long distances and needing to sit most of the
25 workday.
26 The RFC does not account for Plaintiff’s testimony that she has to elevate her feet,
27 experiences shooting pain while sitting, and is unable to concentrate due to her pain. The
28 ALJ rejected Plaintiff’s testimony about the extent of these symptoms because treatment
1 notes in the medical record show that although Plaintiff had decreased sensation in her feet,
2 she retained 5/5 lower extremity strength and had a normal gait. AR 30. The ALJ
3 recognized that some treatment notes from 2023 refer to an antalgic gait, but they are
4 inconsistent with treatment notes from other contemporaneous medical visits. AR 30.
5 The Court finds sufficient support in the record for the ALJ’s analysis. Treatment
6 notes from Dr. Suthakar, a treating neurologist, on June 22, 2021, indicate normal muscle
7 bulk and tone, 5/5 strength in all extremities, and normal gait. AR 489-90. Plaintiff was
8 treated by Dr. Loomba for pain management in 2021 and 2022. His treatment notes from
9 in-person examinations indicate normal lower extremity strength, AR 521, 534; and
10 Plaintiff denied issues with balance difficulty, gait abnormality, and loss of strength during
11 video visits. AR 525, 528. Treatment notes from physical exams by Plaintiff’s primary care
12 provider from approximately 2021 to 2023 indicate normal gait, normal coordination, and
13 normal lower extremity strength. AR 543, 564, 645, 658.4 In a consulting orthopedic
14 evaluation from December 2022, Dr. Tran observed that Plaintiff ambulates with a “slow
15 and guarded gait,” could “perform toe walking or heel walking,” and “tandem walking,”
16 albeit all slowly and with some pain. AR 613. Dr. Tran found that Plaintiff had 5/5 strength
17 in her lower extremities, no postural or gait instability, and could stand or walk for 6 hours
18 in an 8-hour workday. AR 617.
19 The Court recognizes, as did the ALJ, that there are other notes from physical
20 examinations in the record that indicate problems with Plaintiff’s gait. For example,
21 Plaintiff’s treating neurologist Dr. Martin noted a “somewhat antalgic gait” during several
22 visits in late 2022 and 2023. AR 609, 628, 633, 672, 704. Dr. Schweller, a neurologist who
23 performed a consultative examination in October 2023, observed “a wide-based unsteady
24 gait with a slight steppage to both feet.” AR 723. But these same doctors also found that
25 Plaintiff had normal strength in her lower extremities. AR 672, 704, 723. Plaintiff argues
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4 Plaintiff had several other visits to her primary care physician, but the treatment notes
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1 that the ALJ relied too heavily on treatment notes from Plaintiff’s allergist in April and
2 July 2023 that reflected a normal gait, but the allergist’s notes are consistent with the
3 treatment notes from Plaintiff’s primary care physician. Compare AR 677, 683, 691, 698,
4 712 with AR 543, 563, 645, 658. In this circumstance, where the ALJ has provided specific
5 reasons supported by the record for discrediting Plaintiff’s symptoms, the Court is not free
6 to second-guess the ALJ’s conclusions, even though some of the evidence in the record
7 may be contradictory. Batson v. Commissioner, 359 F.3d 1190, 1196 (9th Cir. 2004)
8 (“When evidence reasonably supports either confirming or reversing the ALJ’s decision,
9 we may not substitute our judgment for that of the ALJ.”).5
10 The ALJ addressed Plaintiff’s symptom testimony regarding her upper extremities
11 separately. AR 31. Plaintiff’s complaints are that she experiences pain when carrying items
12 over 3 pounds and has difficulty grasping objects because of tremors in her hands. AR 69-
13

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15 5 The ALJ did not specifically address Plaintiff’s complaints about her ability to focus and
concentrate due to pain. The record, however, supports that any failure to address this
16
symptom is harmless. See Batson, 359 F.3d at 1197. The only medical evidence in the
17 record regarding this symptom is a report from a consulting psychologist, Dr. Jerry
Livesay, which conflicts with Plaintiff’s testimony. AR 595. Dr. Livesay opined after
18
examining Plaintiff in October 2022 that Plaintiff “was able to sustain her concentration
19 and she worked at a persistent steady pace,” and her “concentration was sustained and she
was not unduly distracted.” AR 597, 599. Similarly, although the ALJ’s finding that
20
Plaintiff can drive a car “without noted issues,” AR 31, appears to be incorrect, it is not
21 sufficient to call into question the ALJ’s overall assessment of Plaintiff’s testimony. See
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008)
22
(upholding an ALJ’s decision even where two of the ALJ’s reasons supporting his adverse
23 credibility finding were invalid, because “[s]o long as there remains substantial evidence
supporting the ALJ’s conclusions on credibility and the error does not negate the validity
24
of the ALJ’s ultimate credibility conclusion, such is deemed harmless and does not warrant
25 reversal. . . . Here, the ALJ’s decision finding [the plaintiff] less than fully credible is valid,
despite the errors identified above.”) (internal alterations, quotations, and citation omitted);
26
Wells v. Comm’r of Soc. Sec., No. 1:17-CV-00078-SKO, 2017 WL 3620054, at *10 (E.D.
27 Cal. Aug. 23, 2017) (“While the ALJ erred in providing one invalid reason for the
credibility finding[,] that error was harmless, as substantial evidence still supports the
28
1 70. The ALJ rejected this testimony based on treatment notes that show that Plaintiff had
2 intact sensation and 5/5 strength in her upper extremities, an August 2021 nerve study with
3 normal findings, limited references to hand tremors, and normal findings regarding grip
4 strength and range of motion of her upper extremities. AR 31.
5 The Court finds sufficient support in the record for the ALJ’s analysis. The treatment
6 notes from neurologist Dr. Suthakar note that a nerve study conducted in April 2021 based
7 on Plaintiff’s complaints of tremors was normal. AR 502. Dr. Suthakar’s treatment notes
8 from June 2021 indicate no tremors and 5/5 strength in Plaintiff’s upper extremities.
9 Dr. Loomba’s treatment notes indicate normal strength in the upper extremities upon
10 examination in 2021 and 2022. AR 521, 534. Plaintiff denied tremors and
11 tingling/numbness at televisits in 2021 and 2022. AR 525, 529. Although her primary care
12 physician noted a “slight tremor b/l hands” at a March 2022 visit, Plaintiff stated at that
13 visit that “she is able to type.” AR 542. The report of a consultative orthopedic examination
14 by Dr. Tran on December 5, 2022, notes reduced sensation in the right thumb, but Dr. Tran
15 also found normal strength and grip, and no limitations on grasping or fingering. AR 618.
16 Plaintiff’s treating neurologist Dr. Martin noted in multiple examinations that Plaintiff had
17 normal strength and “no tremors or other adventitious movements,” even though she had
18 diminished sensation in her hands. AR 605, 606, 609, 628, 632-33, 672, 704. As noted
19 above, as long as the ALJ has properly supported his analysis based on a review of the
20 entire record, the Court is not free to engage in second-guessing. See Cook v. Saul, 852 F.
21 App’x 256, 259-60 (9th Cir. 2021); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
22 The ALJ also addressed Plaintiff’s neck pain separately. Although Plaintiff’s
23 medical records support that she has experienced neck pain in the past, the Court could not
24 find any specific testimony by Plaintiff, either in her Exertion Questionnaire or from the
25 hearing transcript, that focused on neck pain. Plaintiff’s testimony focused primarily on the
26 neuropathy in her lower limbs. Nonetheless, the ALJ discussed Plaintiff’s neck limitations.
27 The ALJ noted that an MRI in April 2021 confirmed that Plaintiff has degenerative disc
28 disease, which was further confirmed by cervical x-rays. AR 32. Plaintiff reported
1 improvement with physical therapy. AR 32. Plaintiff received a cervical medial branch
2 block in February 2022. AR 32. After that, the medical notes reflect either full range of
3 motion or a mild limitation in her cervical range of motion. AR 32.
4 The Court finds sufficient support in the record for the ALJ’s analysis. Plaintiff
5 received physical therapy for neck pain in 2021. The therapist’s notes indicate
6 improvement with treatment. AR 448. The notes from physical examinations by various
7 doctors over more than two years indicate either full range of motion or a mild limitation
8 in her cervical range of motion. AR 605, 608, 627, 632, 671, 704. The orthopedic
9 consultative examiner found Plaintiff had normal cervical range of motion in
10 December 2022. AR 617. Plaintiff had a full range of motion in her neck at the neurological
11 consultative examination in October 2023. AR 723.
12 The undersigned finds no error in the ALJ’s evaluation of Plaintiff’s testimony.
13 B. The ALJ Properly Assessed the Medical Opinions
14 Plaintiff asserts that the ALJ failed to properly evaluate the medical opinions of
15 Plaintiff’s treating provider, Dr. Martin, and the consultative examining neurologist,
16 Dr. Schweller. Defendant contends that the ALJ’s decision should be affirmed because the
17 ALJ provided substantial evidence to support his findings that Dr. Martin’s opinion was
18 not persuasive and Dr. Schweller’s opinion was partially persuasive.
19 1. Legal Standard
20 The ALJ “need not take every medical opinion at face value.” Cross v. O’Malley,
21 89 F.4th 1211, 1213 (9th Cir. 2024). “Rather, the ALJ must scrutinize the various – often
22 conflicting – medical opinions to determine how much weight to afford each opinion.” Id.
23 at 1213-14. As the ALJ undertakes this analysis, the most critical factors the ALJ must consider
24 are supportability and consistency. 20 C.F.R. § 404.1520c(a); id. § 416.920c(a).
25 “Supportability means the extent to which a medical source supports the medical opinion
26 by explaining the relevant objective medical evidence.” Woods v. Kijakazi, 32 F.4th 785,
27 791-92 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520c(c)(1)). “Consistency means the
28 extent to which a medical opinion is consistent with the evidence from other medical
1 sources and nonmedical sources in the claim.” Id. at 792 (citing 20 C.F.R. §
2 404.1520c(c)(2)). In assessing a medical opinion’s persuasive value, the “ALJ need only
3 provide an explanation supported by substantial evidence.” Kitchen, 82 F.4th at 740.
4 2. Dr. Martin’s Opinion
5 Dr. Martin completed a Physical Assessment of Plaintiff on March 29, 2023.
6 AR 623-24. He diagnosed Plaintiff with peripheral neuropathy, chronic cervical pain, and
7 chronic lumbar pain. AR 623. He opined that Plaintiff’s symptoms were so severe that they
8 would constantly interfere with the attention and concentration required to perform simple
9 work-related tasks. AR 623. He opined that Plaintiff would need to take excessive breaks,
10 could sit 2-3 hours, and stand or walk 1 hour in an 8-hour workday. AR 623. He opined
11 that Plaintiff could use her hands for grasping, turning, and twisting objects less than 5%
12 percent of an 8-hour workday, and Plaintiff could not perform fine manipulation duties at
13 all. AR 623. He opined that Plaintiff would be absent from work as a result of her
14 impairments more than 4 times per month. AR 623.
15 The ALJ found Dr. Martin’s opinion unpersuasive because the record does not
16 support: 1) issues with attention or concentration; 2) the sitting, standing, and walking
17 limitations; 3) the lifting, carrying, and upper extremity limitations; and 4) the finding that
18 Plaintiff would be absent more than 4 days per month. AR 33-34. Substantial evidence
19 supports the ALJ’s finding.
20 With respect to issues with attention and concentration, the ALJ relied on the report
21 of Dr. Livesay’s consultative psychological examination on October 13, 2022. AR 595-
22 600. Dr. Livesay reported that Plaintiff was able to maintain concentration during the
23 examination and performed well on several cognitive tests. AR 33. The undersigned’s
24 review of Dr. Livesay’s report indicates it is consistent with the ALJ’s analysis. Plaintiff
25 argues that Dr. Livesay’s report is insufficient to support rejecting Dr. Martin’s opinion
26 because there is a material difference between maintaining concentration during a medical
27 evaluation and maintaining concentration in an employment setting. ECF No. 12 at 27.
28 Dr. Martin’s opinion, however, directly contradicted Dr. Livesay. If Plaintiff’s pain would
1 “constantly” interfere with her work activities, it would be reasonable to expect that it
2 would also impact her during a medical evaluation where she was asked to perform
3 multiple cognitive tasks. Therefore, the ALJ adequately provided a reasonable explanation
4 supported by substantial evidence in the record for rejecting this portion of Dr. Martin’s
5 opinion, which is all that is required. Sara M. v. Kijakazi, No. 5:21-CV-01554-JC, 2022
6 WL 17968073, at *7 (C.D. Cal. Dec. 23, 2022).
7 With respect to the sitting, standing, and walking limitations, the ALJ recognized
8 that the nerve conduction study and reduced sensation in the lower extremities warrant
9 some accommodation for her neuropathy. AR 33. The ALJ addressed those issues by
10 limiting Plaintiff to sedentary work in the RFC. AR 33. The ALJ considered Dr. Martin’s
11 opinion that greater limitations were necessary, but rejected it based on multiple references
12 in Plaintiff’s treatment records that reflected normal strength in the lower extremities and
13 Plaintiff’s activities, including riding a bike and driving. AR 33. The undersigned’s review
14 of the record confirms that it is consistent with the ALJ’s analysis. AR 489, 490, 521, 525,
15 528, 534, 543, 564, 596, 613, 617, 645, 648.
16 With respect to the lifting, carrying, and upper extremity limitations, the ALJ found
17 them to be extreme in light of the medical evidence. AR 33. Although Plaintiff had reported
18 some hand numbness and there were notes reflecting reduced sensation in her hands, the
19 treatment notes also show that Plaintiff had normal strength in her upper extremities and a
20 nerve conduction study on her upper extremities was normal. AR 33. Dr. Martin’s own
21 treatment notes state consistently that Plaintiff’s “fine finger movements are intact,” AR
22 605-06, 609, 633, 672, 704, which directly contradicts his opinion that Plaintiff could not
23 perform fine manipulation duties at all. AR 623.
24 With respect to the findings that Plaintiff would be absent more than four days in a
25 month, the ALJ found them to be unsupported because Dr. Martin did not document any
26 limitations in his treatment records to support this opinion, and Dr. Martin does not provide
27 any explanation for this finding in his opinion. AR 34. The undersigned’s review of the
28 entire record confirms this finding.
1 The ALJ’s analysis of and reliance on the record to explain his reasons for finding
2 Dr. Martin’s opinion unpersuasive are sufficient to meet the supportability and consistency
3 standard. The ALJ’s assessment of Dr. Martin’s opinion is supported by substantial
4 evidence. Therefore, the Court should reject Plaintiff’s second claim of error.
5 3. Dr. Schweller’s Opinion
6 Dr. Schweller conducted a neurological consultative examination of Plaintiff on
7 October 10, 2023. AR 722. He opined that Plaintiff:
8 Would be able to stand and walk for 30 minutes out of an eight-hour day and
sit for six hours out of an eight-hour day. She would be able to lift 10 pounds
9
occasionally and 10 pounds frequently. She would be unable to ambulate
10 without an assistive device. There would be occasional limits in bending,
stooping, squatting, kneeling and crawling. There would be no significant
11
limits of upper extremity fine or gross manipulation. She requires a cane for
12 ambulation and should avoid unprotected heights and exposure to moving
machinery.
13
14 AR 34. The ALJ found Dr. Schweller’s opinion to be partially persuasive. He rejected
15 Dr. Schweller’s opinions that Plaintiff was limited to standing or walking for 30 minutes
16 out of an eight-hour day and that Plaintiff needed a cane to walk on the grounds that they
17 “are not consistent with the totality of the evidence.” AR 34. The ALJ pointed out that
18 Plaintiff “did not exhibit these same limitations with other treatment providers in 2023 or
19 at her initial appointment with Dr. Martin, which was just shortly before her
20 December 2022 consultative examination.” AR 34. The undersigned finds that the ALJ
21 accurately summarized the record evidence, which is inconsistent with respect to the
22 Plaintiff’s gait and ability to walk without a cane. AR 489, 490, 521, 525, 528, 534, 543,
23 564, 613, 617, 645, 648. Contrary to Plaintiff’s suggestion, significant portions of the
24 record are from observations of a neurologist, pain specialist, or orthopedic specialist – not
25 an allergist or Plaintiff’s primary care physician. E.g., AR 489, 490 (neurologist); 521, 525,
26 528, 534 (pain specialist); 613, 617 (orthopedic specialist). It does not appear that the ALJ
27 cherry-picked the record to reach his conclusion; instead, he discussed the conflicting
28 evidence and made a determination that Dr. Schweller’s opinion was partially persuasive
1 in light of the evidence. “Where the evidence is susceptible to more than one rational
2 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be
3 upheld.” Thomas, 278 F.3d at 954. The undersigned recommends the Court reject
4 Plaintiff’s third claim of error on this ground.
5
C. The ALJ Was Not Required to Include Plaintiff’s Mental Limitations
6 in the RFC
7 Plaintiff contends that the ALJ erred by formulating an RFC that contained no
8 mental work restrictions, even though the ALJ found that Plaintiff had mild limitations in
9 concentration, persistence, and maintaining pace; and in adapting and managing herself.
10 Plaintiff additionally argues that the ALJ should have posed hypothetical questions to the
11 vocational expert that included these mild limitations. Plaintiff further contends that the
12 ALJ compounded this error by ignoring additional mild limitations in Plaintiff’s ability to
13 respond to changes in a routine work setting and respond to changes to work pressures in
14 a usual work setting found by the consultative psychological examiner, Dr. Livesay, even
15 though the ALJ found Dr. Livesay’s opinion persuasive.
16 Defendant disagrees that the ALJ was required to incorporate any mild mental
17 limitations in the RFC or the hypotheticals posed to the Vocational Examiner, and argues
18 that Plaintiff fails to explain how incorporating the limitations would result in a finding
19 that she could not perform the jobs identified by the ALJ at step five.
20 1. Legal Standard
21 At step two of the disability evaluation process, the ALJ did not find that Plaintiff
22 had any severe mental impairments. AR 25. Notwithstanding this finding, the ALJ was
23 required by the regulations to consider the limiting effects of all of Plaintiff’s impairments,
24 even those that are not severe, in determining Plaintiff’s RFC. 20 C.F.R. § 404.1545(e).
25 See also SSR 96-8p, 1996 WL 374184, at *5 (S.S.A. July 2, 1996) (“In assessing RFC, the
26 adjudicator must consider limitations and restrictions imposed by all of an individual's
27 impairments, even those that are not ‘severe.’”). Following these requirements, at step two,
28 the ALJ considered the four broad functional areas of mental functioning set forth in the
1 regulations for evaluating mental disorders. These four functional areas include (1)
2 understanding, remembering, and applying information; (2) interacting with others; (3)
3 concentration, persistence, or maintaining pace; and (4) adapting or managing oneself. See
4 20 C.F.R. § 404.1520a(c)(3) (listing these “four broad functional areas in which [the
5 Agency] will rate the degree of [a claimant’s] functional limitation” when evaluating
6 mental impairments). These four functional areas are also known as the “paragraph B
7 criteria” due to how they are categorized in the listings. See 20 C.F.R., Part 404, Subpart
8 P, Appendix 1.
9 The ALJ found that Plaintiff’s non-severe mental impairments caused mild
10 limitations in all four areas of mental functioning. AR 27. The ALJ’s analysis was based
11 on a psychological consultative examination by Dr. Livesay, AR 595-600, and the opinions
12 of two state agency psychological consultants, Dr. Paxton and Dr. Dilger, AR 107- 26. The
13 ALJ found their opinions “mostly persuasive,” and Plaintiff does not challenge this finding.
14 AR 27. The ALJ rejected Dr. Livesay’s opinion that Plaintiff had a moderate impairment
15 in daily activities because the record did not support that Plaintiff’s housing situation was
16 due to a mental impairment. AR 27. He rejected Dr. Paxton and Dr. Dilger’s opinions that
17 Plaintiff has a mild limitation in interacting with others because there was no support in
18 the record for that conclusion. AR 27. The ALJ went on to state that the RFC he adopted
19 “reflects the degree of limitation the undersigned has found in the ‘paragraph B’ mental
20 function analysis.” AR 27.
21 Plaintiff argues that the Court should follow Hutton v. Astrue, 491 F. App’x 850 (9th
22 Cir. 2012), and find that the ALJ erred by not including Plaintiff’s mild mental limitations
23 in the RFC. In Hutton, the Ninth Circuit held in an unpublished opinion that an ALJ erred
24 by failing to address the plaintiff’s post-traumatic stress disorder (“PTSD”) in the RFC
25 determination and in the hypotheticals to the Vocational Expert in step five. Id. at 850. The
26 ALJ considered the plaintiff’s PTSD at step two and found mild mental limitations as a
27 result. Id. In making the RFC determination, however, the ALJ expressly excluded the
28 plaintiff’s PTSD from consideration because he found the plaintiff was not credible. Id.
1 The Ninth Circuit held that this was error because “the ALJ was required to consider
2 [plaintiff’s] physical impairments and the ‘mild’ limitations his PTSD caused with
3 concentration, persistence, or pace, regardless of whether the ALJ doubted that they were
4 caused by [plaintiff’s] ever-shifting military history.” Id. at 850-51. Hutton is
5 distinguishable, because here the ALJ engaged in a lengthy analysis of Plaintiff’s mild
6 mental impairments at step two and incorporated that analysis expressly in the RFC
7 determination. AR 26-27. The ALJ also discussed the mental limitations in his RFC
8 analysis when assessing the medical opinions of Dr. Martin and Dr. Recalde and explaining
9 why he did not think the record supported mental limitations in the area of attention and
10 concentration. AR 33.
11 In more recent published authority, the Ninth Circuit has held that to demonstrate
12 that an ALJ erred by failing to incorporate mental limitations in the RFC, a plaintiff has to
13 “identify … particular evidence that the ALJ failed to consider or explain why the record
14 does not support the ALJ’s findings” regarding mental functioning. Woods, 32 F.4th at 794.
15 Plaintiff argues that because the ALJ found Dr. Livesay’s opinion persuasive, he was
16 compelled to either incorporate the mental limitations in Dr. Livesay’s opinion or explain
17 his decision not to include them. The undersigned disagrees. The ALJ’s analysis confirms
18 that he reviewed and considered Dr. Livesay’s opinion thoroughly and considered
19 Plaintiff’s mild mental limitations when formulating the RFC.
20 Plaintiff’s assertion of error with respect to the hypotheticals posed to the Vocational
21 Examiner fails for the same reason. “It is … proper for an ALJ to limit a hypothetical to
22 those impairments that are supported by substantial evidence in the record.” Osenbrock. v.
23 Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). If a mild limitation presents “no significant
24 interference with the ability to perform basic work-related activities,” it does not need to
25 be included in the hypotheticals. Id. Here, as discussed above, there is substantial evidence
26 in the record to support the ALJ’s decision not to include Plaintiff’s mild mental limitations
27 expressly in the RFC or the hypotheticals posed to the Vocational Examiner. The
28
| |}undersigned finds no error. Accordingly, the Court should reject Plaintiff's fourth claim of
2 || error.
3 IV. CONCLUSION
4 The Court submits this Report and Recommendation to United States District Judge
5 || Thomas J. Whelan under 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.2(d) of the United
6 || States District Court for the Southern District of California. For the reasons set forth above,
7 | IS HEREBY RECOMMENDED that the District Judge issue an Order: (1) approving
8 adopting this Report and Recommendation, (2) AFFIRMING the decision of the
9 || Commissioner, and (3) directing that judgment be entered in the Commissioner’s favor.
10 IT IS HEREBY ORDERED that any party to this action may file written objections
11 || with the Court and serve a copy on all parties no later than March 3, 2025. The document
12 ||should be captioned “Objections to Report and Recommendation.” Any Reply to the
13 |}Objections shall be filed with the Court and served on all parties no later than
14 || March 10, 2025.
15 IT IS SO ORDERED.
16 Dated: February 14, 2025
7 _ Abia. Xion
Honorable Allison H. Goddard
18 United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10800857. Public record. Not legal advice.