Nolan v. O'Malley

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MICHELLE LYNN N. Case No.: 24-cv-480-DDL

12 Plaintiff,

ORDER AFFIRMING DECISION

13 v. OF THE COMMISSIONER

14 LELAND DUDEK, ACTING

15 COMMISSIONER OF SOCIAL

SECURITY,1

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Defendant.

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19 Plaintiff Michelle Lynn N. (“Plaintiff”) appeals the Commissioner’s denial of

20 her application for supplemental security income pursuant to 42 U.S.C. § 405(g).

21 For the reasons stated below, the Court concludes the Commissioner’s decision is

22 not erroneous and is supported by substantial evidence and is therefore

23 AFFIRMED.

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1 Leland Dudek is automatically substituted for Martin O’Malley pursuant to

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1 I.

2 BACKGROUND

3 A. Plaintiff’s Application for Disability Benefits

4 On November 26, 2018, Plaintiff applied for supplemental security income

5 under Title XVI of the Social Security Act (the “Act”). See Certified Administrative

6 Record (“AR”) [Dkt. No. 11] at 95, 109.2 Plaintiff alleged she had been unable to

7 work since November 26, 2018, due to “mental problems” and “knee problems.” 3

8 Id. at 95-96, 109. After her application was denied at the initial stage and upon

9 reconsideration, Plaintiff requested a hearing before an administrative law judge

10 (“ALJ”). Id. at 137. Plaintiff appeared with counsel and testified at a hearing on

11 September 13, 2022 (the “2022 Hearing”), following which the record remained

12 open for further development. Id. at 33-67. Plaintiff’s counsel requested a

13 supplemental hearing which was held on July 11, 2023 (the “2023 Hearing”). Id.

14 at 68-94. The ALJ issued an unfavorable decision on September 11, 2023, having

15 concluded Plaintiff “has not been under a disability, as defined in [the Act], since

16 the date the application was filed.” Id. at 14-27. On January 9, 2024, the Appeals

17 Council denied review, and the ALJ’s decision became final. See id. at 1-6. This

18 appeal timely followed.

19 B. Summary of ALJ’s Findings

20 A person is considered “disabled” within the meaning of the Act if they

21 suffer from a medically determinable physical or mental impairment which is

22 expected to last at least a year and is of such severity that they cannot work,

23 considering their age, education, and work experience. See 42 U.S.C. § 423(d). The

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2 The Court uses the parties’ pagination of the AR. All other docket citations

26 are to the CM/ECF page numbers.

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3 Plaintiff initially alleged an onset date of October 1, 2015, but later amended

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1 ALJ followed the sequential five-step evaluation set forth in the regulations in

2 adjudicating Plaintiff’s disability claim.4 See generally AR at 14-27.

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

4 activity since November 26, 2018, the date of her application and her alleged onset

5 date. Id. at 19.

6 At step two, the ALJ found Plaintiff had the following severe impairments:

7 osteoarthritis of the knees, obesity, and degenerative joint disease of the right knee.

8 Id. The ALJ found Plaintiff’s other alleged physical impairments were not severe.5

9 Id. at 19-20. The ALJ also considered Plaintiff’s allegations of disabling anxiety,

10 depression, and post-traumatic stress disorder, but determined these mental

11 impairments were not severe. Id. at 20. In making this finding, the ALJ assessed

12 Plaintiff’s functioning in the four “Paragraph B” categories.6 Based on the

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4 The ALJ must determine the following: at step one, whether the claimant is

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engaged in substantial gainful activity; at step two, whether the claimant suffers

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from a severe impairment within the meaning of the regulations; at step three,

17 whether the impairment meets or is medically equal to an impairment identified

18 in the Listing of Impairments; at step four, the claimant’s residual functional

capacity (“RFC”) based on all impairments and whether the claimant can perform

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their past relevant work; at step five, whether the claimant can make an

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adjustment to other work. If the claimant is found not disabled at any step, the

21 analysis does not proceed to the next step. See 20 C.F.R. § 416.920.

22 5 These included mild focal sensory neuropathy of left median nerve at the

23 wrist, tobacco abuse, methamphetamine abuse, chronic obstructive pulmonary

disease, asthma, obstructive sleep apnea, chronic pain, restless leg syndrome,

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gastroesophageal reflux disease, and mild carpal tunnel syndrome. Plaintiff does

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not challenge the ALJ’s conclusion that these conditions were not severe.

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6 In addition to the five-step sequential evaluation, where a claimant alleges a

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mental impairment, the ALJ must also rate the claimant’s degree of limitation in

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1 evidence in the record, the ALJ determined Plaintiff had a mild limitation in

2 understanding, remembering or applying information; a mild limitation in

3 interacting with others; a mild limitation in concentrating, persisting or

4 maintaining pace; and a mild limitation in adapting or managing herself. See Id.

5 Because Plaintiff’s medically determinable mental impairments caused “no more

6 than ‘mild’ limitation in any of the functional areas and the evidence does not

7 otherwise indicate that there is more than a minimal limitation in the claimant’s

8 ability to do basic work activities,” the ALJ concluded these impairments were

9 “nonsevere.” Id. at 20-21.

10 At step three, the ALJ found Plaintiff’s impairments did not meet or

11 medically equal a listed impairment. Id. at 21-22.

12 The ALJ then determined Plaintiff:

13 Has the residual functional capacity to perform light work as defined

14 in 20 C.F.R. [§] 416.967(b) except [she] can stand without interruption

for 15 minutes; she can walk without interruption for five minutes; she

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can stand for two hours out of an eight-hour workday; she can walk

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for two hours out of an eight-hour workday; and she can sit for four

17 hours without interruption and six hours out of an eight-hour

workday. She can occasionally climb ramps and stairs but no climbing

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ladders, ropes or scaffolds; occasionally balance, stoop, kneel, crouch

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and crawl; frequent pushing and pulling with the right hand;

20 occasionally work at unprotected heights and moving mechanical

21 parts; occasionally operate motor vehicles; frequent exposure to

humidity and wetness; frequent exposure to dusts, gasses and

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others; concentrate, persist, or maintain pace; and adapt or manage oneself), using

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a five-point scale (none, mild, moderate, marked, and extreme). See 20 C.F.R.

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§ 416.920a. This analysis is interchangeably referred to as the “Paragraph B”

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1 pulmonary irritants; occasional exposure to extreme heat and cold;

frequent exposure to vibration and can tolerate loud noises.

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3 AR at 22.

4 The ALJ considered Plaintiff’s subjective testimony regarding her limitations

5 in formulating the RFC. Id. at 22-24. Having reviewed the evidence, including

6 Plaintiff’s testimony at the 2022 and 2023 administrative hearings, the ALJ found

7 although Plaintiff’s medically determinable impairments could reasonably be

8 expected to cause her alleged symptoms, Plaintiff’s allegations regarding the

9 intensity, persistence and limiting effects of her symptoms were “not entirely

10 consistent with the medical evidence and other evidence in the record.” Id. at 23.

11 The ALJ also considered third-party function reports to the extent those reports

12 were consistent with the “overall medical evidence of record.” Id. at 25.

13 The ALJ also reviewed the medical opinions and prior administrative

14 medical findings in the record. AR at 24-25. The ALJ found the opinions of two

15 state agency medical consultants and a consultative examiner, all limiting Plaintiff

16 to light work, were persuasive because they were supported by objective findings

17 and consistent with the medical evidence as a whole. Id. at 24. The ALJ found

18 Plaintiff’s treating osteopath’s opinion that Plaintiff was “limited to less than

19 sedentary work,” “incapable of even low stress work,” and would need to be off

20 task or absent a significant amount of time unpersuasive. Id. at 25. The ALJ noted

21 the treating osteopath’s opinions were not supported by treatment notes or other

22 objective findings, and inconsistent with other objective medical evidence. Id.

23 At step four, the ALJ found Plaintiff had no past relevant work. AR at 25.

24 At step five, the ALJ determined an individual of Plaintiff’s age, education, work

25 experience, and RFC would be able to perform jobs which exist in significant

26 numbers in the national economy. Id. at 26. Accordingly, the ALJ concluded

27 Plaintiff was “not disabled” within the meaning of the Act. Id. at 27.

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1 II.

2 ISSUES PRESENTED

3 Plaintiff raises two issues on appeal:

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1) Whether the ALJ harmfully erred by failing to identify and resolve

5 an apparent conflict between the DOT and vocational expert

6 testimony; and

7 2) Whether the ALJ harmfully erred by finding Plaintiff’s medically

determinable mental impairments non-severe at Step Two of the

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sequential analysis.

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10 See Plaintiff’s Opening Brief (“Op. Br.”), Dkt. No. 18, at 6.

11 III.

12 STANDARD OF REVIEW

13 The Court’s review of the Commissioner’s final decision is “highly

14 deferential.” Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023).7 The Court “will

15 disturb the denial of benefits only if the decision contains legal error or is not

16 supported by substantial evidence.” Id. “Substantial evidence is such relevant

17 evidence that a reasonable mind might accept as adequate to support a conclusion,

18 and must be more than a mere scintilla, but may be less than a preponderance.”

19 Id. This Court must review the entire record and consider adverse as well as

20 supporting evidence. See Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). The

21 Court “may not reweigh the evidence or substitute [its] judgment for that of the

22 ALJ.” Id. Moreover, “[t]he ALJ is responsible for determining credibility,

23 resolving conflicts in medical testimony, and for resolving ambiguities.” Id. If the

24 evidence is susceptible of more than one rational interpretation, the Court must

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7 Unless otherwise noted, all citations, subsequent history, and parallel

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reporter citations are omitted; in direct quotes, all internal quotation marks,

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1 uphold the ALJ’s decision. See id. at 1115-16. However, the Court cannot affirm

2 “on a ground upon which [the ALJ] did not rely.” Garrison v. Colvin, 759 F.3d 995,

3 1010 (9th Cir. 2014). Where the ALJ commits legal error, the Court may affirm the

4 decision if the error is harmless, meaning “it is inconsequential to the ultimate

5 nondisability determination, or that, despite the legal error, the agency’s path may

6 reasonably be discerned, even if the agency explains its decision with less than

7 ideal clarity.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “[T]he

8 burden of showing that an error is harmful normally falls upon the party attacking

9 the agency’s determination.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012),

10 superseded on other grounds by 20 C.F.R. § 404.1502(a).

11 IV.

12 DISCUSSION

13 With the foregoing legal standards in mind, the Court addresses each of the

14 disputed issues Plaintiff has identified.

15 A. Plaintiff Has Not Established a Harmful Step Five Error

16 As a first charge of reversible error, Plaintiff asserts the ALJ “harmfully erred

17 by relying on the [vocational expert’s] contradictory testimony to support a

18 finding of non-disability at Step Five . . ..” Op. Br. at 10.

19 “An ALJ often calls upon a vocational expert to testify about what jobs, if

20 any, a hypothetical person with specified limitations may perform.” Leach v.

21 Kijakazi, 70 F.4th 1251, 1254 (9th Cir. 2023). “Typically, the ALJ questions the

22 vocational expert by describing a hypothetical person with the claimant’s

23 limitations.” Conway v. O’Malley, 96 F.4th 1275, 1278 (9th Cir. 2024). “If the ALJ

24 reaches the final step of the five-step process, the ALJ may rely—as the ALJ did

25 here—on the vocational expert’s testimony.” Leach, 70 F. 4th at 1254. For such

26 reliance to be proper, however, any hypothetical posed to the vocational expert

27 must accurately describe the claimant’s limitations, and the ALJ must resolve any

28 obvious conflict in the vocational expert’s testimony. See id. at 1255.

1 Plaintiff further argues the ALJ “put forth the same sedentary hypothetical

2 twice to the [vocational expert],” but the vocational expert gave inconsistent

3 responses to the purportedly identical hypotheticals, and the ALJ then “failed to

4 identify and resolve” the apparent conflict. Id. at 11-12. Plaintiff’s challenge

5 relates to the ALJ’s exchange with the vocational expert during the 2023 Hearing.

6 See AR at 88-91. It began:

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ALJ: . . . Let’s assume a hypothetical individual of the claimant’s age,

8 education with the past work as described. So, no past work. Let’s

9 further assume this individual can lift and carry, push, pull 20 pounds

occasionally and 10 pounds frequently.

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This claimant can sit for four hours without interruption. She can sit

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for six hours out of an eight-hour workday.8

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This claimant can stand without interruption for 15 minutes. She can

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walk without interruption for five minutes. She can stand for two

15 hours out of an eight-hour work day. She can walk for two hours out

16 of an eight-hour work day. This person can sit for four hours without

interruption. She can sit for six hours out of an eight-hour workday.9

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* * *

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19 With this particular hypothetical, can our hypothetical person perform

any other work?

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VE: Yes.

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22 Id. at 84-85 (emphasis added).

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8 At this point the ALJ indicated he was reading from the consultative

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examiner’s report (see AR at 1399-1405) and engaged in discussion with Plaintiff’s

26 counsel about where to locate the recommended limitations within the report.

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9 The ALJ proceeded to describe other postural, manipulative and

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1 The vocational expert described jobs that existed in the national economy

2 that could be performed by a person with the ALJ’s hypothetical limitations. AR

3 at 85-86. The vocational expert clarified they would “erode” the number of

4 available positions by half “due to the limitations in regard to sit/stand/walk.” See

5 id. Notwithstanding this discount, however, the vocational expert testified the

6 hypothetical claimant could work as an assembler (36,000 jobs nationally and

7 before erosion), marker (137,000 jobs), or solderer (29,000 jobs). Id.

8 The exchange continued:

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ALJ: All right. And, if I changed standing and walking in an eight

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hour day . . . [l]et’s change standing and walking to two hours. And,

11 does that bring it down to sedentary work or, or not?

12 VE: Yes. If they stand to two hours. Yes. It would bring it down to

13 sedentary.

14 ALJ: All right. So, give me some sedentary examples.

15 VE: Yeah. So, one example would be a document preparer . . .

16 Nationally, there would be approximately 15,000 jobs . . . A second

example would be addresser . . . Nationally there would [be]

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approximately 3,000 jobs . . . A third example would be final assembler

18 . . . Nationally, there would be approximately 2,900 jobs.

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20 Id. at 86-87 (emphasis added).

21 The ALJ then added mental and social limitations to his hypothetical,

22 limiting the hypothetical claimant to low stress work consisting of simple

23 instructions and tasks and with minimal contact with the public. AR at 88-89. The

24 vocational expert testified, “the jobs I provided for the prior hypotheticals would

25 all still apply” and “it would not change the numbers.” Id. at 89. In response to

26 the ALJ’s question, the vocational expert confirmed if the hypothetical claimant

27 were off-task 15 percent of the day or more, it would “preclude all work.” Id.

28 Plaintiff’s attorney then asked “If [a claimant] is below sedentary, sit/stand/walk

1 for less than two hours out of an eight-hour workday . . . could they perform any

2 work?” Id. at 90-01 (emphasis added). The vocational expert responded in that

3 hypothetical, the claimant would be precluded from all work. Id. at 91.

4 Plaintiff asserts the two hypotheticals posed by the ALJ were identical,

5 because the ALJ did not “change” the standing and walking limitation from the

6 first hypothetical to the second. Op. Br. at 12. Plaintiff further asserts neither the

7 ALJ nor the vocational expert “apparently realiz[ed] the ALJ had put forth the

8 same standing and walking limitation in hypotheticals 1 and 2,” and the ALJ erred

9 by failing to resolve the apparently conflicting answers from vocational expert,

10 who identified light-work positions in response to the first hypothetical, but

11 confirmed that the second hypothetical would be classified as sedentary. Id.

12 Although the ALJ’s two hypotheticals might appear identical on a superficial

13 reading, close scrutiny does not support Plaintiff’s interpretation of the record.

14 The Court agrees with the Commissioner that, viewed in the context of the entire

15 exchange and with reference to the medical opinions in the record and Social

16 Security Ruling 83-10, the ALJ and Plaintiff’s counsel posed a series of

17 hypotheticals ranging from modified light work to “below sedentary,” to which

18 the vocational expert responded without inconsistency. See Commissioner’s Brief

19 (“Comm’r Br.”), Dkt. No. 19, at 5.

20 The Administration defines sedentary work as work that requires walking

21 and standing only “occasionally.” See Titles II & XVI: Determining Capability to Do

22 Other Work-the Med.-Vocational Rules of Appendix 2, SSR 83-10, 1983 WL 31251

23 (S.S.A. 1983) (hereafter “SSR 83-10”). “[A]t the sedentary level of exertion, periods

24 of standing or walking should generally total no more than about 2 hours of an 8-

25 hour workday, and sitting should generally total approximately 6 hours of an 8-

26 hour workday.” Id. “[T]he full range of light work,” in contrast, “requires

27 standing or walking, off and on, for a total of approximately 6 hours of an 8-hour

28 workday,” with the remaining time spent sitting. As the Administration explains,

1 “the primary difference between sedentary and most light jobs” is the maximum

2 amount of time spent standing or walking. Id.

3 During the 2023 Hearing, the ALJ first posed a hypothetical to the vocational

4 expert describing a claimant who could sit for up to two hours and stand for up to

5 two hours, for a total of four hours. AR at 84-85. This hypothetical mirrors the

6 report by the consultative examiner, who stated: “[Plaintiff] can stand for two

7 hours out of an eight-hour workday. She can walk for two hours out of an eight-

8 hour workday.” See id. at 1404. And, as the Commissioner correctly points out,

9 “this hypothetical was representative of a reduced range of light work.” Comm’r

10 Br. at 5. The second hypothetical reduced the combined time spent standing and

11 walking to two hours. Id. at 86. Consistent with the foregoing definitions, the ALJ

12 confirmed this change would “bring it down to sedentary.” Id. Plaintiff’s counsel

13 then posed a final question regarding the availability of work accurately described

14 as “below sedentary,” based on Plaintiff’s treating osteopath’s opinion that

15 Plaintiff could walk no more than one city block, sit for no more than five minutes,

16 and stand for no more than five minutes. See id. at 90 (referencing “17F,” Dr.

17 Corman’s medical opinion (see AR at 1406-10)). In response to these hypotheticals,

18 the vocational expert identified light-work and sedentary positions, and

19 confirmed there would be no work below the sedentary level, respectively. Id. at

20 84-90. Viewed in this context, the Court agrees with the Commissioner that there

21 was “no conflict” in the vocational expert’s responses to the ALJ’s first and second

22 hypotheticals, “because the jobs were derived from two different standing and

23 walking limitations.” Comm’r Br. at 6.

24 Plaintiff’s further arguments that the ALJ erred at step five proceed from her

25 misapprehension of the hearing transcript, and fail for the same reasons described

26 above. For example, Plaintiff asserts the ALJ erred by identifying “light” jobs

27 available in the national economy “to base a finding of non-disability” despite the

28 ALJ’s “concession” she is only capable of sedentary work. See Op. Br. at 12. But

1 Plaintiff’s assertion that ALJ’s RFC limits her to “two hours standing and walking”

2 in an eight-hour workday – i.e., to sedentary work – is directly contradicted by the

3 record. See id. The ALJ’s opinion plainly states Plaintiff “can stand for two hours

4 out of an eight-hour workday; [and] she can walk for two hours out of an eight-

5 hour workday.” See AR at 22. The limitation to four combined hours of standing

6 and walking renders Plaintiff capable of a reduced range of light work, as reflected

7 in the ALJ’s decision. See SSR 83-10. Likewise, Plaintiff’s argument that the

8 sedentary jobs identified by the vocational expert were either obsolete or do not

9 exist in significant numbers nationwide fails to show harmful error (even if true),

10 because Plaintiff was not limited to sedentary work per the ALJ’s RFC

11 determination. See Op. Br. at 13-14.

12 Aside from incorrectly deeming the ALJ’s two hypotheticals “identical,”

13 Plaintiff does not otherwise argue the ALJ “materially mischaracterized” her

14 functional capacity, nor does she identify any other “obvious” conflict in the

15 vocational expert’s testimony. See Leach, 70 F.4th at 1254-55. Absent such a

16 showing, the ALJ was entitled to rely on the vocational expert’s testimony. Id.

17 For the foregoing reasons, the Court finds Plaintiff has not carried her

18 burden to demonstrate harmful error with respect to the ALJ’s analysis at step five.

19 B. Plaintiff Has Not Established a Harmful Step Two Error

20 As a second charge of reversible error, Plaintiff asserts the ALJ “harmfully

21 erred” by “failing” to find Plaintiff’s mental impairments severe at step two, “or

22 accounting for the limitations of these [impairments] in the RFC beyond Step Two

23 of the sequential evaluation.” Op. Br. at 15.

24 At step two, the ALJ must determine whether the claimant has a medically

25 determinable impairment or combination of impairments that is severe. 20 C.F.R.

26 § 416.920(a)(4). The Ninth Circuit has emphasized that “[a]n impairment or

27 combination of impairments may be found not severe only if the evidence

28 establishes a slight abnormality that has no more than a minimal effect on an

1 individual’s ability to work.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005)

2 (emphasis in original). In evaluating a claimant’s mental impairments, the ALJ

3 rates the claimant’s degree of limitation in the following four broad functional

4 areas, also known as the “paragraph B” criteria: (1) understanding, remembering,

5 or applying information; (2) interacting with others; (3) concentrating, persisting,

6 or maintaining pace; and (4) adapting or managing oneself. 20 C.F.R.

7 § 404.920a(c)(2)-(3). If the ALJ rates a claimant’s degrees of limitation as “none” or

8 “mild,” the ALJ will generally conclude the claimant’s mental impairment is not

9 severe. Id. § 416.920a(d)(1).

10 As an initial matter, any alleged error by the ALJ in classifying Plaintiff’s

11 mental impairments as non-severe cannot be a basis for reversal because the ALJ

12 resolved step two in Plaintiff’s favor. Because the ALJ found Plaintiff had some

13 severe impairments, the classification of Plaintiff’s mental impairments as non-

14 severe could not have prejudiced her. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th

15 Cir. 2017) (because step two was decided in the claimant’s favor, he “could not

16 possibly have been prejudiced”); see also Loader v. Berryhill, 722 F. App’x 653, 654-

17 55 (9th Cir. 2018) (where the claimant prevailed at step two, and his case proceeded

18 on the basis of “other” severe impairments, “it made no difference for the ALJ’s

19 ensuing analysis whether his medically determinable depression was previously

20 considered severe”). Rather, the dispositive question is whether the ALJ’s ensuing

21 analysis, particularly the RFC assessment, accurately reflected Plaintiff’s

22 limitations based on all the relevant evidence in the record.

23 On this question, Plaintiff asserts “[r]egardless of the determination of

24 ‘severity’ at step Two, the as the ALJ [sic] found anxiety, depression and PTSD to

25 be MDI, the ALJ was required to account for them beyond step [t]wo and three of

26 the decision and harmfully erred by failing to do so.” Op. Br. at 24. Plaintiff

27 further charges the ALJ “cherry picked” benign findings from a single mental

28 status examination and failed to address a “bevy” of conflicting evidence “outside

1 of the discussion of the [Paragraph] ‘B’ criteria.” Id. at 17, 19, 23-24. Again, the

2 Court disagrees.

3 The Commissioner is correct that consideration of whether an impairment is

4 “’severe’ . . . is concerned with whether the condition significantly limits a

5 claimant’s ability to perform basic work activities.” Comm’r Br. at 7. For reasons

6 discussed at length in the decision, the ALJ determined Plaintiff’s mental

7 impairments did not significantly limit her ability to perform work activities. AR

8 at 20-21. The ALJ therefore reasonably determined Plaintiff’s mental impairments

9 were not severe. See 20 C.F.R. § 416.920a(d)(1) (“If we rate the degrees of your

10 limitation as ‘none’ or ‘mild,’ we will generally conclude that your impairment[]

11 is not severe, unless the evidence otherwise indicates that there is more than a

12 minimal limitation in your ability to do basic work activities.”); see also O'Neal v.

13 Astrue, No. CIV. 09-722-AA, 2010 WL 4386937, at *3 (D. Or. Oct. 29, 2010) (“The

14 SSA regulations and the Ninth Circuit hold[] that mild psychological impairments

15 are appropriately considered nonsevere.”) (citing Saelee v. Chater, 94 F.3d 520, 522

16 (9th Cir.1996) and 20 C.F.R. § 404.1520a(d)(1)).

17 The Court is not persuaded that the ALJ “failed to explain” how he reached

18 this conclusion, or that he did so based on “cherry-picked” evidence. Op. Br. at

19 16-17. In conducting the Paragraph B analysis, the ALJ cited six exhibits consisting

20 of extensive medical records, including 22 mental status examination reports

21 dating from 2015 through 2023, in addition to various psychological finding

22 during other medical visits.10 See id. at 20 (citing Exhibits 1-4F, 15F and 18F). And,

23 as the ALJ correctly noted, the results of those mental status examinations were

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10 See, e.g., AR at 416, 446, 466, 552, 571, 1181-82, 1190-91, 1194-95, 1202-03, 1215-

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16, 1219-20, 1234, 1247, 1250, 1261, 1342, 1430-31, 1434-35, 1439, 1443-44, 1447-48,

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1453, 1457-58, 1477, 1484-85 (mental status examinations and psychological

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1 largely within normal limits, specifically in the areas of memory, intellect, thought

2 process, judgment, insight, motor skills, speech, and concentration. Id. at 20. The

3 ALJ also correctly noted Plaintiff was routinely found to be alert and oriented in

4 all spheres, cooperative, and independently performing activities of daily living.

5 See id. Although Plaintiff catalogs her providers’ notes regarding her ongoing

6 depression, anxiety, and PTSD-related symptoms in the record that might support

7 a finding of greater limitations, if the evidence “supports more than one rational

8 interpretation,” this Court “must defer” to the ALJ’s decision. Batson v. Comm’r,

9 359 F.3d 1190, 1193 & n.1 (9th Cir. 2004); accord Howard ex rel. Wolff v. Barnhart, 341

10 F.3d 1006, 1013 (9th Cir. 2003) (“The presence of contradictory reports does not

11 preclude a finding that a claimant is not disabled.”).

12 Plaintiff also complains the ALJ did not “discuss the evidence of mental

13 impairment outside of the ‘B’ criteria” analysis (Op. Br. at 24), but on the Court’s

14 reading of the decision, that is exactly what the ALJ did. Directly following the

15 Paragraph B analysis, the ALJ proceeded to determine Plaintiff’s mental RFC. See

16 AR at 21 (“The following residual functional capacity assessment reflects the

17 degree of limitation the undersigned has found in the ‘paragraph b’ mental

18 function analysis.”). Again belying Plaintiff’s allegations of cherry-picking, the

19 ALJ cited mental status examinations and progress notes from Plaintiff’s mental

20 healthcare providers dated 2017, 2018, 2021, 2022 and 2023, the April 20, 2019

21 report of a psychiatrist’s consultative examination, and the findings by state

22 agency medical consultants on initial and reconsideration review. See id. (citing

23 AR at 95-107, 110-120, 446, 466, 471, 619, 620, 1181-83, 1190-91, 1201-03, 1211-12,

24 1434-35, 1447-48, 1457, and 1476). The ALJ noted these records and medical

25 opinions were consistent with his conclusion that Plaintiff had “at most mild

26 limitation in the broad domains of functioning” addressed in the Paragraph B

27 analysis. Id. As described by the ALJ, the medical evidence demonstrated

28 Plaintiff’s symptoms were “mostly stable with medication,” had not significantly

1 worsened over the course of her treatment; Plaintiff continued to demonstrate

2 alertness, average intelligence, and appropriate thought content despite external

3 stressors and ongoing depression. Id. The ALJ noted this evidence supported his

4 determination that Plaintiff had only mild limitations due to her mental

5 impairments. See id.

6 Even if the ALJ did not discuss Plaintiff’s non-severe mental impairments

7 after step two, Plaintiff has not demonstrated such failure was harmful error. “An

8 ALJ is required to discuss and evaluate evidence that supports his conclusion; he

9 is not required to do so under any specific heading.” Scotellaro v. Colvin, No. 2:13-

10 CV-00696-GMN, 2015 WL 4275970, at *9 (D. Nev. June 22, 2015) (citing Kennedy v.

11 Colvin, 738 F.3d 1172, 1178 (9th Cir. 2013)). Here, the ALJ thoroughly explained

12 his step-two findings, and incorporated those findings by reference in his RFC

13 analysis. See id. (finding under similar facts the ALJ considered claimant’s mild

14 mental limitation when determining his residual functional capacity).

15 The ALJ must “consider the limiting effects of all [a claimant’s]

16 impairment(s), even those that are not severe.” 20 C.F.R. § 416.945(e). But

17 consideration of the limiting effects of all impairments does not require the

18 inclusion of every impairment into the final RFC if the record indicates the non-

19 severe impairment does not cause a significant limitation in the plaintiff’s ability

20 to work. See Burch v. Barnhart, 400 F.3d 676, 684 (9th Cir. 2005) (finding ALJ’s

21 decision not to include the plaintiff’s non-severe impairment in RFC determination

22 was proper because there was no evidence the impairment caused any functional

23 limitations). Nor is the requirement that the ALJ consider Plaintiff’s limitations

24 the equivalent of a requirement that the ALJ exhaustively dissect all the evidence

25 in the record. See Hudnall v. Dudek, -- F. 4th --, 2025 WL 729701, at *3 (9th Cir. Mar.

26 7, 2025) (noting “there is a distinction between what an adjudicator must consider

27 and what the adjudicator must explain in the disability determination or

28 decision”).

1 Moreover, Plaintiff has not identified other functional limitations the ALJ

2 should have adopted, nor explained how incorporating any additional limitations

3 based on her mental impairments – even if supported by the evidence – would

4 have resulted in a different outcome. See Burch, 400 F.3d at 684 (finding no error

5 at step five and noting plaintiff “ha[d] not set forth, and there is no evidence in the

6 record, of any functional limitations as a result of her obesity that the ALJ failed to

7 consider”); Campos v. Astrue, 656 F. Supp. 2d 1179, 1186 (C.D. Cal. 2009) (finding

8 no error where plaintiff “failed . . . to point to any evidence that she suffered from

9 functional limitations due to [her impairment], let alone limitations which would

10 have impacted the ALJ’s analysis”). In fact, when the ALJ added mental and social

11 limitations to his hypothetical during the 2023 Hearing, the vocational expert

12 confirmed, “the jobs I provided for the prior hypotheticals would all still apply”

13 and “it would not change the numbers.” AR at 88-89. To the extent these mental

14 and social limitations should have been included in the RFC, their omission was

15 harmless. See Molina, 674 F.3d at 1115 (“[I]n each case we look at the record as a

16 whole to determine whether the error alters the outcome of the case”).

17 For the foregoing reasons, the Court finds Plaintiff has not met her burden

18 to establish harmful error with respect to the ALJ’s determination at step two of

19 the sequential analysis.

20 C. Substantial Evidence Supports the ALJ’s Conclusions

21 Having found the ALJ’s evaluation of Plaintiff’s subjective testimony is free

22 of harmful error, the Court turns to the question of whether the ALJ’s conclusion

23 is supported by substantial evidence. The Court has independently “assess[ed]

24 the entire record, weighing the evidence both supporting and detracting from the

25 [ALJ’s] conclusion.” See Ahearn, 988 F.3d at 1115. Based on this review, the Court

26 finds substantial evidence supports the ALJ’s decision, as summarized below.

27 The record confirms Plaintiff suffers from osteoarthritis in both knees and

28 obesity, with frequent complaints of knee pain. See, e.g., AR at 540, 588, 604, 609,

1 865, 1333, 1518. Findings on physical examination demonstrated occasional

2 edema and tenderness, but without deformity, full range of motion, and 5/5

3 strength with extension and flexion. Id. at 658; 666, 672, 988, 1000, 1146, 1403.

4 Plaintiff’s knee pain was treated with medication, cortisone injections, hyaluronic

5 acid injections, knee braces, and physical therapy, which she reported provided

6 some relief. Id. at 543-45, 582-84, 658. Plaintiff’s treating providers considered

7 knee replacement if “conservative management” failed, and Plaintiff was working

8 toward losing weight to ready herself for surgery. Id. at 659, 945, 981, 1012-14,

9 1324. At a pre-operative evaluation in 2020, Plaintiff’s “exercise capacity” was

10 assessed at 4 METS, or the ability to climb a flight of stairs or walk uphill. Id. at

11 1350.

12 Plaintiff also regularly consulted with her physicians and a dietician

13 regarding her obesity and discussed the possibility of bariatric surgery with them.

14 AR at 555-56, 596-98, 606, 629, 654, 885, 946. She also endorsed eating healthy and

15 walking for 10 minutes several times a week. Id. at 1303, 1312. In early 2023, she

16 was noted to be able to engage in a 45-minute exercise class and tolerated

17 endurance, strengthening, stretching and mobility exercises “without incident.”

18 Id. at 1544. She also reported continuing her regular, daily walks. Id. at 1554.

19 The record also confirms Plaintiff has been diagnosed with depression,

20 anxiety and post-traumatic stress disorder resulting from witnessing her

21 husband’s suicide in 1995. See, e.g, id. at 422, 430, 572, 682, 969, 1430. Plaintiff’s

22 documented symptoms included depressed mood, poor sleep, nightmares and

23 poor focus. See, e.g., id. at 500, 647. Notwithstanding these reported symptoms,

24 and despite occasionally presenting as tearful, anxious, agitated or with a flat

25 affect, findings on mental status examinations as to orientation, speech, memory,

26 attention, fund of knowledge, judgment, insight and thought process were

27 consistently within normal limits over a several-year period (2017 to 2023). Id. at

28 446, 466, 532, 624, 879, 1181, 1219, 1261, 1430, 1477. She was also noted to have a

1 “normal affect” or “okay mood” at several non-psychiatric healthcare visits. See,

2 e.g., id. at 552, 566, 658, 947, 965, 1309, 1342, 1548.

3 On initial review of Plaintiff’s application, F. Kalmar, M.D. determined

4 Plaintiff was physically capable of modified light work. AR at 105. Dr. Kalmar

5 noted Plaintiff’s BMI was 45.5 and that notwithstanding the findings of bilateral

6 osteoarthritis of the knees, “neuro intact, strength 5/5 . . . no acute abnormality.”

7 Id. Regarding mental impairments, P. Solomon, Ph.D., determined Plaintiff had

8 either no limitations or only mild limitations in all four Paragraph B criteria. Id. at

9 101-02. Dr. Solomon concluded Plaintiff’s mental impairments were “n[on-]

10 s[evere] per SSA standards,” noting Plaintiff’s mental status examinations were

11 “largely intact.” Id. at 102; see also id. at 103 (noting “MDI established for psych,

12 but not at incapacitating level”). On reconsideration review, P. Caruso-Radin,

13 Psy.D., affirmed Dr. Solomon’s findings, stating “[o]verall, the evidence as a whole

14 indicates the prior decision remains reasonable and based in the M[edical]

15 E[vidence of] R[ecord].” Id. at 114. Dr. Kalmar’s findings were affirmed on

16 reconsideration review by B. Vaghaiwalla, M.D, based on his review of the medical

17 evidence. Id. at 118.

18 On April 20, 2019, psychiatrist Gregory Nicholson, M.D., conducted a

19 psychiatric consultative examination of Plaintiff. AR at 616-621. Plaintiff was

20 noted to be tearful and depressed, but otherwise demonstrated average

21 intelligence, normal speech, grossly intact insight, judgment, and fund of

22 knowledge, and was “coherent and organized” in her thought processes. Id. at

23 618-19. Based on his examination, Dr. Nicholson diagnosed Plaintiff with anxiety

24 disorder and major depressive disorder, both of which were expected to improve

25 with treatment. Id. at 619-20.

26 On January 20, 2023, Phong Dao, D.O. conducted an internal medicine

27 consultation. AR at 1395-1405. Based on this examination, Dr. Dao assessed

28 Plaintiff with bilateral knee pain, obesity, depression, and a history of carpal

1 |/tunnel syndrome. Id. at 1404. Dr. Dao determined Plaintiff was capable of a

2 reduced range of light work. Id. at 1404-05.

3 The Court finds the foregoing is relevant and substantial evidence adequate

4 ||to support the conclusion that Plaintiff's mental impairments were non-severe,

5 |jand the determination that Plaintiff had the residual functional capacity to

6 || perform a reduced range of light work as described in the ALJ’s decision. As such,

7 \|the ALJ’s RFC and resulting determination that Plaintiff is not disabled within the

8 ||meaning of the Act are adequately supported and will not be disturbed. See

9 || Ahearn, 988 F.3d at 1115 (“If substantial evidence in the record supports the ALJ’s

10 || decision we must defer to the ALJ.”); see also 42 U.S.C.A. § 405(g) (“[t]he findings

11 || of the Commissioner of Social Security as to any fact, if supported by substantial

12 || evidence, shall be conclusive”).

13 V.

14 CONCLUSION

15 For the reasons stated above, the Court concludes the AL]’s decision is free

16 || of legal error and is supported by substantial evidence, and accordingly AFFIRMS

17 ||the final decision of the Commissioner of Social Security. The Clerk of the Court

18 ||shall enter judgment accordingly and terminate the case.

19 || IT IS SO ORDERED.

20 || Dated: March 19, 2025 _— ZL

21 Tb Lon we

22 ‘Hon.DavidD.Leshner

23 United States Magistrate Judge

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