# Diaz-Babauta v. O' Malley

> District Court, S.D. California · August 21, 2025

URL: https://www.frixlaw.com/law-library/cases/11126403

## Case

- **Court:** District Court, S.D. California
- **Decided:** August 21, 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 FORMAINE Y.D., Case No.: 24-cv-1815-DDL

12 Plaintiff,
ORDER AFFIRMING
13 v. COMMISSIONER’S DECISION
AND ENTERING JUDGMENT IN
14 FRANK BISIGNANO, Acting COMMISSIONER’S FAVOR
15
Commissioner of Social Security,1

Defendant.
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18 Plaintiff Formaine Y.D. seeks judicial review of the Social Security Commissioner’s
19 denial of her application for disability benefits. See Dkt. No. 1. The parties have consented
20 to the undersigned’s jurisdiction. Dkt. No. 5. For the reasons stated below, the Court finds
21 the Commissioner’s determination that Plaintiff is not disabled is free of legal error and
22 supported by substantial evidence in the record. The Commissioner’s decision is therefore
23 AFFIRMED.
24 / / /
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1 Frank Bisignano 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 Plaintiff applied for disability insurance benefits under Title II of the Social Security
5 Act (the “Act”) on February 1, 2023. Certified Administrative Record (“AR”) [Dkt. No.
6 7] at 10, 146-49. She alleges she has been unable to work since February 12, 2021 because
7 of her disabling impairments. Id. After her application was denied at the initial stage and
8 upon reconsideration, Plaintiff requested a hearing before an administrative law judge
9 (“ALJ”), which occurred by telephone on April 16, 2024 before ALJ Howard K. Treblin.
10 Id. at 10. Plaintiff appeared with counsel and gave testimony. Id. at 10, 35-42. Vocational
11 expert Alan E. Cummings also testified at the April 16 hearing. Id. at 10, 43-47. The ALJ
12 issued an unfavorable decision on July 24, 2024, having concluded Plaintiff “has not been
13 under a disability, as defined in [the Act], from February 12, 2021, through the date of [the]
14 decision.” Id. at 28. On September 13, 2024, the Appeals Council denied review, and the
15 ALJ’s decision became final. See id. at 1-3.
16 B. Summary of the ALJ’s Findings
17 A person is considered “disabled” within the meaning of the Act if they suffer from
18 a medically determinable physical or mental impairment which is expected to last at least
19 a year and is of such severity that they cannot work, considering their age, education, and
20 work experience. See 42 U.S.C. § 423(d). The Administration employs a sequential five-
21 step evaluation to make this determination.2
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2 The ALJ must determine the following: at step one, whether the claimant is engaged
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in substantial gainful activity; at step two, whether the claimant suffers from a severe
25 impairment within the meaning of the regulations; at step three (if the claimant suffers from
a severe impairment), whether the impairment meets or is medically equal to one of the
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impairments identified in the Listing of Impairments; at step four, the claimant’s residual
27 functional capacity (“RFC”) based on all impairments and whether, given the RFC, the
claimant can perform his or her past relevant work; at step five, whether the claimant can
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1 The ALJ followed this five-step process in adjudicating Plaintiff’s disability claim.
2 See generally AR at 12-26. At step one, the ALJ found Plaintiff had not engaged in
3 substantial gainful activity since February 12, 2021, the alleged onset date of her disability.
4 Id. at 12. At step two, the ALJ found Plaintiff had the following severe impairments:
5 “lower back pain, full thickness rotator cuff tendon tear of the left shoulder, full thickness
6 tear of the supraspinatus tendon of the right shoulder with tendinosis, torn ACL ligament
7 of the left knee, right knee strain, carpal tunnel syndrome of the bilateral wrist, hallux
8 valgus and bunion of the bilateral foot, depressive, bipolar, and related disorders, and
9 trauma-and stressor-related disorder.” Id.3 Considering the four broad functional areas of
10 mental functioning known as the “Paragraph B criteria,” the ALJ found that Plaintiff had
11 mild limitations in her ability to adapt or manage herself and moderate limitations in
12 understanding, remembering, or applying information; interacting with others; and
13 concentrating, persisting, or maintaining pace. Id. at 14. The ALJ also considered mental
14 health assessments in the record. Id. at 20-22. Based on this evidence and the Paragraph
15 B analysis, the ALJ concluded that the “severity of the claimant’s mental impairments . . .
16 do not meet or medically equal the criteria of listing 12.04 and 12.15,” and that “[b]ecause
17 the claimant’s mental impairments do not cause at least two marked limitations or one
18 extreme limitation, the paragraph B criteria are not satisfied.” Id. at 14.
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make an adjustment to other work based on his or her RFC. If the claimant is found not
22 disabled at any step, the analysis does not proceed to the next step.
See 20 C.F.R. § 404.1520.
23

3 Although the record mentions additional impairments related to
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“headaches/migraines and sleep apnea,” there were “minimal treatment records related to
25 these conditions” and the ALJ found “no objective medical evidence to support any
durational functional limitations on basic work activities.” AR at 14. The ALJ thus
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deemed these impairments non-severe because they caused no more than “minimal
27 limitation in [Plaintiff’s] ability to perform basic work activities.” Id; 20 C.F.R.
§ 404.1522(a) (“An impairment or combination of impairments is not severe if it does not
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1 At step three, the ALJ found Plaintiff’s impairments did not meet or medically equal
2 a listed impairment. Id. at 13. At step four, the ALJ determined that despite her
3 impairments, Plaintiff could:
4 perform light work as defined in 20 CFR [§] 404.1567(b) except the claimant
could frequently lift and/or carry 10 pounds and occasionally lift and/or carry
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20 pounds. The claimant could sit for 6 hours in an 8-hour workday and stand
6 and/or walk for 4 hours in an 8-hour workday. The claimant has no limitation
with regards to pushing and/or pulling other than what is comparable to the
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amount of weight for lifting and/or carrying. The claimant can frequently use
8 hand controls bilaterally. The claimant could occasionally climb ramps and
stairs, and never climb ladders, ropes and scaffolds. The claimant could
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occasionally balance, stoop, kneel, crouch and crawl. The claimant could
10 occasionally reach overhead bilaterally. The claimant could frequently handle
and finger bilaterally and feeling is unlimited. The claimant would need to
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avoid concentrated exposure to extreme cold and vibration and would need to
12 avoid all unprotected heights and dangerous moving machinery. The claimant
is able to understand, remember, and carry out simple tasks, unskilled type
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work, simple job instructions. The claimant could interact appropriately with
14 coworkers and supervisors, however, there should be no teamwork or
collaborative work. The claimant is able to make appropriate handoffs of work
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materials and products to coworkers and supervisors. The claimant should
16 have limited public contract (i.e., occasional, brief, superficial, non-job
performance related contact with the public). The claimant is able to respond
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appropriately to supervision and routine work settings as well as changes in
18 routine works settings and situations. The claimant can appropriately make
decisions, ask questions, and use judgment.
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20 AR at 15.
21 In formulating this RFC, the ALJ considered Plaintiff’s subjective testimony
22 regarding her limitations. Id. at 16-18. The ALJ found that although Plaintiff’s medically
23 determinable impairments could reasonably be expected to cause her alleged symptoms,
24 the “claimant’s statements concerning the intensity, persistence and limiting effects of
25 these symptoms are not entirely consistent with the medical evidence and other evidence
26 in the record.” Id. at 16-24.
27 The ALJ also considered medical opinion evidence and prior administrative medical
28 findings in the record. Id. at 22-25. The ALJ found responses to a medical interrogatory
1 by Matt Dorweiler, M.D. partially persuasive except to the extent they were inconsistent
2 with, and more restrictive than, state agency findings. Id. at 22-23. The ALJ found an
3 orthopedic evaluation by Juliane Tran, M.D. partially persuasive except to the extent it was
4 inconsistent with, and less restrictive than, other findings in the record. Id. at 23. The ALJ
5 found responses to a medical interrogatory by Les Kertay, Ph.D. generally persuasive
6 because Dr. Kertay’s opinion that the claimant had mild to moderate limitations in the
7 mental functioning areas was consistent with the record. Id. The ALJ found the
8 psychological consultative examination by Jerry Livesay, Ph.D. mostly unpersuasive
9 because Dr. Livesay’s opinion that Plaintiff had marked limitations in several of her mental
10 functioning areas was inconsistent with mental health treatment records and other medical
11 opinions. Id. at 24. The ALJ found the assessments by state agency medical consultants
12 M. Amado, M.D. and M. Mazuryk, M.D. partially persuasive; although most of the
13 assessments were “supported by explanation with reference to the evidence of record,”
14 some findings—such as the limitation to standing/walking for 6 hours—were inconsistent
15 with other evidence in the record. Id. at 24-25. The ALJ found the findings of state agency
16 psychological consultants Sergiy Barsukov, Psy.D., and G. Rivera-Miya, M.D. somewhat
17 supported by the record, except that the assessment that Plaintiff is limited to one to two
18 step instructions was inconsistent with mental status examinations and Plaintiff’s
19 successful management of depression and anxiety symptoms with medication. Id. at 25.
20 Finally, neither the opinion offered by Plaintiff’s treating acupuncturist Teresa Onan, L.Ac
21 that Plaintiff is completely disabled, nor the disability finding by the United States
22 Department of Veterans Affairs, were persuasive because the question of whether Plaintiff
23 is disabled is a determination reserved for the Commissioner.4 Id. at 25-26.
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25

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27 4 Decisions by other governmental agencies (20 C.F.R. 404.1504) and statements on
issues “reserved to the Commissioner” are types of “[e]vidence that [are] inherently neither
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1 After detailing consultative examiners’ reports and medical records, the ALJ
2 concluded “there are several reasons why the claimant’s impairments do not support
3 greater limitations in the residual functional capacity.” Id. at 18. First, Plaintiff’s
4 “conservative course of treatment is inconsistent” with what “one would expect for a totally
5 disabled individual.” Id. Second, the record shows “various forms of treatment for
6 [Plaintiff’s] pain symptoms, as described above, . . . have generally been successful in
7 controlling these symptoms.” Id. at 19 (citing id. at 514, 517, 533, 604, 606, 668, 701,
8 704-05, 715, 822, 955) (treatment notes describing reported improvements in conditions or
9 decreases in pain symptoms from medical treatment). Third, “clinical findings do not
10 support the claimant’s pain and limitations are as severe and limiting as alleged.” Id. at 19.
11 As to physical symptoms, the ALJ noted Plaintiff: ambulated independently and had
12 range of motion of the bilateral upper extremities within functional levels (id. at 684, 848);
13 had normal gait pattern (id. at 410); had full range of motion of the bilateral hip and the
14 bilateral knee (id. at 410-11); had full range of motion of the elbow joints and wrist joints
15 with positive Tinel’s tests, and full range of motion of the fingers and thumbs bilaterally
16 (id. at 412); had “5/5 strength in the bilateral upper and lower extremities, including grip,
17 with normal muscle bulk and tone and no muscle atrophy” (id. at 413); and presented knee
18 joint space that “was well maintained with no fractures, no osteophytes present, and normal
19 soft tissue planes” (id. at 407). As to mental symptoms, the ALJ noted they were “relatively
20 stable while the claimant was compliant with psychotropic medication,” and that “mental
21 status exams during the period at issue, aside from some depressed, anxious or dysphoric
22 mood and tearful or constricted affect, were mostly unremarkable.” Id. at 20-21. And
23 fourth, Plaintiff’s activities of daily living are inconsistent with the alleged intensity,
24 persistence, and limiting effects of her symptoms. Id. at 22. Lastly, the ALJ considered
25 the non-medical opinions of Plaintiff’s spouse and sister. Id. at 26. The ALJ reviewed this
26 information for “context regarding some of the challenges faced by the claimant relative to
27 coping with the chronic nature of her impairments,” but concluded that it “cannot serve as
28 the basis for finding a disability where the medical evidence does not support such a
1 finding.” Id.
2 Having considered the record as described above, ALJ concluded that “the above
3 [RFC] assessment is the most that the claimant could do on a regular and continuing basis
4 despite the claimant’s impairment-related limitations.” Id. Based on the RFC and the
5 testimony of the vocational expert, the ALJ further found at step four that Plaintiff could
6 not perform her past relevant work as a safety officer. Id. At step five, the ALJ found
7 Plaintiff “capable of making a successful adjustment to other work that exists in significant
8 numbers in the national economy” based on the vocational expert’s testimony regarding
9 jobs which could be performed by someone with Plaintiff’s RFC. Id. at 28-29. In so
10 finding, the ALJ noted that the vocational expert’s testimony was uncontradicted, based on
11 their training, observations, and experience in the vocational field, and consistent with the
12 information contained in the Dictionary of Occupational Titles (“DOT”). Id. at 29.
13 Based on the foregoing five-step analysis, the ALJ concluded Plaintiff had not been
14 under a disability within the meaning of the Act during the relevant period. Id.
15 II.
16 DISPUTED ISSUES
17 Plaintiff identifies three disputed issues on appeal:
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1) Whether the ALJ properly considered medical opinions expressing a more severe
19 limitation to one to two step tasks in Plaintiff’s RFC;
20 2) Whether the ALJ stated clear and convincing reasons to reject Plaintiff’s
subjective testimony; and
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3) Whether the ALJ resolved a conflict between Plaintiff’s RFC and the DOT as to
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Plaintiff’s standing/walking limitations.
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Dkt. No. 9 at 5, 12, 19.
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1 III.
2 STANDARD OF REVIEW
3 The Court’s review of the Commissioner’s final decision is “highly deferential.”
4 Kitchen v. Kijakazi, 82 F. 4th 732, 738 (9th Cir. 2023).5 The Court “will disturb the denial
5 of benefits only if the decision contains legal error or is not supported by substantial
6 evidence.” Id. “Substantial evidence is such relevant evidence that a reasonable mind
7 might accept as adequate to support a conclusion, and must be more than a mere scintilla,
8 but may be less than a preponderance.” Id. The Court must review the entire record and
9 consider adverse as well as supporting evidence. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th
10 Cir. 2021). The Court “may not reweigh the evidence or substitute [its] judgment for that
11 of the ALJ.” Id. Moreover, “[t]he ALJ is responsible for determining credibility, resolving
12 conflicts in medical testimony, and for resolving ambiguities.” Id. If the evidence is
13 susceptible of more than one rational interpretation, the ALJ’s decision must be upheld.
14 Id. at 1115-16. However, the Court cannot affirm “on a ground upon which [the ALJ] did
15 not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). Where the ALJ commits
16 legal error, the Court may affirm the decision if the error is harmless, meaning “it is
17 inconsequential to the ultimate nondisability determination, or that, despite the legal error,
18 the agency’s path may reasonably be discerned, even if the agency explains its decision
19 with less than ideal clarity.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).
20 “[T]he burden of showing that an error is harmful normally falls upon the party attacking
21 the agency's determination.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
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5 All citations, internal quotation marks, and subsequent history are omitted, and
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1 IV.
2 DISCUSSION
3 A. Plaintiff Has Not Demonstrated Harmful Error
4 With the foregoing legal standards in mind, the Court addresses each of the disputed
5 issues above.
6 1. Other medical opinions suggesting a stricter RFC
7 As a first charge of error, Plaintiff argues the ALJ failed to consider “other treatment
8 notes consistent with deficient memory” in rejecting a “limitation to one to two step tasks”
9 in Plaintiff’s RFC. Dkt. No. 9 at 9-11. Plaintiff argues that such a limitation was necessary
10 because she repeatedly presented with short-term memory problems, attention deficits,6
11 and dysthymic mood and dysphoric and blunted affect, and gave abnormal responses to
12 questions at the consultative mental examination conducted by Dr. Livesay.7 Id. at 10.
13 Furthermore, Plaintiff argues, “the ALJ’s citation of improvement with medication
14 compliance” is not “a sufficient ground for rejecting a limitation to one to two step tasks.”
15 Id. at 11. The Court disagrees with Plaintiff’s argument.
16 The ALJ must “not defer or give any specific evidentiary weight, including
17 controlling weight, to any medical opinion(s) . . . , including those from [the claimant’s]
18 medical sources.” 20 C.F.R. § 404.1520c(a). Said differently, the ALJ “need not take
19 every medical opinion at face value.” Cross v. O’Malley, 89 F.4th 1211, 1213
20 (9th Cir. 2024). “Rather, the ALJ must scrutinize the various—often conflicting—medical
21 opinions to determine how much weight to afford each opinion.” Id. at 1213-14. The
22 “most important factors” the ALJ must consider in doing so are “supportability” (whether
23 the provider supported their opinion with citations to objective findings) and “consistency”
24 (whether the opinion is consistent with other evidence in the record). 20 C.F.R.
25 § 404.1520c(a); id. § 404.1520c(c)(1) (defining “supportability” and “consistency”).
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6 Citing AR at 512, 613-14, 823, 854, 965, 971.
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7
1 The ALJ identified specific evidence in the record undermining the severity of some
2 restrictions in the medical findings of Dr. Barsukov, Dr. Rivera-Miya, and Dr. Livesay.8
3 Specifically, the ALJ noted that “[m]ental status examinations . . . were generally
4 unremarkable and found the claimant’s memory and/or concentration was grossly intact
5 with intact/normal cognition and normal speech.” Id. at 25 (citing id. at 474 (March 31,
6 2023 VA progress note listing “clear and coherent” thought process, “grossly intact”
7 memory, and “intact” judgment); id. at 455-56 (same on April 26, 2023); id. at 449 (same
8 on May 4, 2023); id. at 528-29 (same on August 17, 2023); id. at 519 (same on August 25,
9 2023); id. at 503 (same on September 7, 2023); id. at 804 (same on November 27, 2023);
10 id. at 779 (same on January 10, 2024)). Additionally, on April 27, 2024, Dr. Kertay
11 provided a medical interrogatory response after the hearing opining that Plaintiff had no
12 limitations on understanding, remembering, or carrying out simple instructions and only
13 mild limitations on understanding, remembering, or carrying out complex instructions. Id.
14 at 23 (citing id. at 1035-1043).
15 Considering these medical findings, the ALJ rationally found parts of Drs. Barsukov,
16 Rivera-Miya, and Livesay’s reports—those indicating marked limitations in mental
17 functioning or limitations to one to two step instructions—unpersuasive. As detailed
18 above, the ALJ identified contrary findings supporting the omission of a one to two step
19 limitation in the RFC. Thus, the ALJ found these more restrictive limitations not
20 “consistent with the evidence from other medical sources and nonmedical sources in the
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23 8 The ALJ also noted the record indicates Plaintiff’s treatment was generally
successful in controlling Plaintiff’s symptoms. The Court discusses this point in the section
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below related to discrediting Plaintiff’s subjective symptom testimony. But the Ninth
25 Circuit has “particularly criticized the use of a lack of treatment” to reject physician
opinions. Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999);
26
see also Ferrando v. Comm’r of Soc. Sec. Admin., 449 F. App’x 610, 611 (9th Cir. 2011)
27 (claimant’s “failure to seek treatment for his mental illness . . . is not a clear and convincing
reason to reject his psychiatrist’s opinion”). Thus, the Court does not discuss or rely on
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1 claim.” 20 C.F.R. § 404.1520c(c)(2). This was not error. See Coleman v. Saul,
2 979 F.3d 751, 757 (9th Cir. 2020) ( “the ALJ provided legally sufficient reasons” to reject
3 medical opinion where “the full medical record casts doubt on the severity of the
4 limitations assessed”).
5 2. ALJ’s rejection of Plaintiff’s subjective testimony
6 As a second charge of error, Plaintiff asserts the ALJ failed to provide clear and
7 convincing reasons to reject her subjective testimony. The Court disagrees.
8 The ALJ “is not required to believe every allegation of disabling pain.” Molina,
9 674 F.3d at 1112. However, in the absence of evidence of malingering, an ALJ must offer
10 “specific, clear and convincing reasons” for rejecting a claimant’s subjective testimony
11 regarding the limitations caused by his impairment. Ferguson v. O’Malley, 95 F.4th 1194,
12 1199 (9th Cir. 2024); Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022) (“an adverse
13 credibility finding must be based on clear and convincing reasons”). “Because symptoms
14 sometimes suggest a greater severity of impairment than can be shown by objective
15 medical evidence alone,” the ALJ must consider “all of the evidence presented,” including
16 information about the claimant’s prior work record, statements about symptoms, evidence
17 from medical sources, and observations by the Agency’s employees and other individuals.
18 20 C.F.R. § 404.1529(c)(3). The ALJ may also consider the claimant’s daily activities; the
19 location, duration, frequency, and intensity of pain or other symptoms; the type, dosage,
20 effectiveness, and side effects of any medication taken to alleviate pain; and treatment. Id.
21 After reviewing the evidence in the record, the ALJ concluded Plaintiff’s medically
22 determinable impairments could reasonably be expected to cause many of her alleged
23 physical symptoms. AR at 15. Based on his review of the record, however, the ALJ found
24 Plaintiff’s “statements about the intensity, persistence, and limiting effects of her”
25 impairments “are inconsistent with the record because, as discussed in detail below, the
26 record reveals stable findings which show that the claimant’s subjective complaints are
27 disproportionate to objective findings.” Id. at 16-17. Specifically, as relevant to the issue
28 here, the ALJ found not credible the severity of Plaintiff’s allegations of difficulty with
1 “memory, completing tasks, concentration, understanding, following instructions . . . and
2 getting along with others.” Id. at 16 (citing id. at 37-39, 41, 221) (Plaintiff’s function report
3 and hearing testimony). The ALJ discounted Plaintiff’s subjective symptom testimony
4 citing the following reasons: (1) Plaintiff’s symptoms improved with treatment;
5 (2) objective medical evidence undermined Plaintiff’s allegations; and (3) Plaintiff’s
6 activities of daily living were inconsistent with her testimony. Id. at 21-22.
7 First, Plaintiff’s symptoms were “relatively stable while the claimant was compliant
8 with psychotropic medication.” Id. at 21 (discussing improvements in handling emotions
9 and mood when taking Prozac or Cymbalta, and when participating in therapy sessions).
10 In assessing Plaintiff’s subjective symptoms, the ALJ may properly consider the “type,
11 dosage, effectiveness, and side effects of any medication taken to alleviate pain.” 20 C.F.R.
12 § 404.1529(c)(3)(iv)-(v). As Plaintiff correctly notes, “it is a questionable practice to
13 chastise one with a mental impairment for the exercise of poor judgment in seeking
14 rehabilitation.” Dkt. No. 9 at 13 (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th
15 Cir. 1996)).9 But here, the ALJ did not discount Plaintiff’s subjective testimony merely
16 because she expressed a desire to taper off medications against doctors’ orders. Instead,
17 he permissibly considered “evidence of medical treatment successfully relieving
18 symptoms” as one factor that “can undermine a claim of disability.” Wellington v.
19 Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (citing 20 C.F.R. §§ 404.1520a(c)(1)); Guthrie
20 v. Kijakazi, No. 21-36023, 2022 WL 15761380, at *1 (9th Cir. 2022) (finding that the ALJ
21 reasonably relied on evidence of improvement with treatment to discount a claimant’s
22 symptoms allegations). Furthermore, “there is no evidence in the record that [Plaintiff’s]
23 decision” to disobey doctor recommendations was “at least in part a result of her . . .
24
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27
9 See also Regennitter, 166 F.3d at 1299 (plaintiff’s failure to seek treatment by a
28
1 psychiatric issues.” Niemi v. Saul, 829 F. App’x 831, 832 (9th Cir. 2020). Rather, “she
2 decided to stop taking her Prozac due to her desire to be free of any psychotropic
3 medications” and “stopped taking Cymbalta . . . due to its side effects.” Dkt. No. 9 at 13.
4 These were specific, clear, and convincing reasons to reject Plaintiff’s testimony.
5 Second, as discussed supra IV-A-1, the ALJ cited numerous examination findings
6 in the record that were within normal levels. “[I]mprovement or normal findings over time
7 are useful but the data points chosen must in fact constitute examples of broader
8 development to satisfy the applicable specific, clear and convincing standard.” Bonnie B.
9 v. Saul, No. 3:20-CV-653-RBM, 2020 WL 7695332, at *8 (S.D. Cal. Dec. 28, 2020)
10 (emphasis in original); cf. Garrison, 759 F.3d at 1018 (ALJ failed to meet clear and
11 convincing standard where they “improperly singled out a few periods of temporary well-
12 being from a sustained period of impairment and relied on those instances to discredit
13 [claimant]”). The records cited by the ALJ were not isolated incidents, but many medical
14 visits over the course of a year during which symptoms of Plaintiff’s alleged mental
15 impairments were less severe than her testimony. Although “subjective pain is not always
16 verifiable through a physical examination,” Glanden v. Kijakazi, 86 F.4th 838, 847 (9th
17 Cir. 2023), “[w]hen objective medical evidence in the record is inconsistent with the
18 claimant’s subjective testimony, the ALJ may indeed weigh it as undercutting such
19 testimony.” Smartt, 53 F.4th at 498 (collecting cases) (emphasis in original). The Court
20 thus finds this is a sufficiently clear and convincing reason for the ALJ to discount
21 Plaintiff’s subjective testimony under prevailing Ninth Circuit standards.11
22 And third, the ALJ concluded that “[s]ome of the physical and mental abilities and
23

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25 10 See also Molina, 674 F.3d at 1114 (where “there was no medical evidence that
[claimant’s] resistance [to treatment] was attributable to her mental impairment rather than
26
her own personal preference,” it is “reasonable for the ALJ to conclude that the level or
27 frequency of treatment [was] inconsistent with the level of complaints”).
11 See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (upholding ALJ’s finding
28
1 social interactions” of Plaintiff’s reported activities of daily living were “the same as those
2 necessary for obtaining and maintaining employment.” AR at 22. The ALJ pointed
3 specifically to (1) a progress note indicating Plaintiff did not require help or supervision
4 with: “attending to personal care without any problem, preparing meals, performing
5 housework, shopping, driving, using a computer and a phone, managing finances, and
6 managing her medications” and (2) other reports of Plaintiff: attending medical
7 appointments, hanging out with or hosting family members, exercising, going for walks,
8 going to mass, planning a trip, picking up her spouse from the airport, and taking on a
9 caregiver role for others. Id. As Plaintiff correctly points out, the progress note indicates
10 Plaintiff did require help or supervision with managing medications. More importantly,
11 “the ALJ did not elaborate on which daily activities conflicted with which part of
12 Claimant’s testimony.” Burell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). Many daily
13 activities “are not easily transferable to what may be the more grueling environment of the
14 workplace,” but “if a claimant is able to spend a substantial part of his day engaged in
15 pursuits involving the performance of [] functions that are transferable to a work setting, a
16 specific finding as to this fact may be sufficient to discredit” subjective symptom
17 testimony. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (emphasis in original). The
18 ALJ’s general finding that some of Plaintiff’s daily activities may be inconsistent with
19 some of Plaintiff’s statements “is insufficient to meet our requirements of specificity.”
20 Burrell, 775 F.3d at 1138.
21 Thus, although one reason the ALJ provided was not supported by substantial
22 evidence, the ALJ provided two additional clear and convincing reasons, supported by
23 substantial evidence in the record, to discount Plaintiff’s subjective symptom testimony.
24 See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1163 (9th Cir. 2008)
25 (upholding adverse credibility finding where ALJ provided four reasons to discredit the
26 claimant, two of which were invalid); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
27 1190, 1197 (9th Cir. 2004) (same where one of several reasons ALJ gave for making
28 adverse credibility finding was unsupported by the record); Brown-Hunter, 806 F.3d at 492
1 (an error is harmless when “it is inconsequential to the ultimate nondisability
2 determination”). Accordingly, the Court finds that the ALJ did not err in discounting
3 Plaintiff’s subjective symptom testimony.
4 3. Conflict between the RFC and the DOT
5 As a third charge of error, Plaintiff asserts the ALJ failed to resolve a conflict
6 between Plaintiff’s RFC and the DOT’s definition of light work. Dkt. No. 9 at 19-20. The
7 Court finds there is no conflict, and that even if there were one, the ALJ resolved it.
8 The “Social Security Administration relies primarily on the [DOT] for information
9 about the requirements of work in the national economy,” and a vocational expert’s
10 testimony generally should be consistent with it. Massachi v. Astrue, 486 F.3d 1149, 1153
11 (9th Cir. 2007) (quoting SSR 00-4p, 2000 WL 1898704, at *2). “When there is a conflict
12 between the DOT and a VE’s testimony, neither automatically prevails over the other.”
13 Rosalie M. M. v. Saul, No. ED CV 19-02347-RAO, 2020 WL 5503240, at *2 (C.D. Cal.
14 Sept. 11, 2020). Rather, when “there is an apparent unresolved conflict between the VE
15 evidence and the DOT, it is the duty of the ALJ to elicit a reasonable explanation for the
16 conflict before relying on the VE’s evidence.” Nabis-Smith v. Colvin, No. 6:13-CV-01427-
17 JE, 2015 WL 6964179, at *5 (D. Or. Nov. 9, 2015), aff’d 690 F. App'x 503 (9th Cir. 2017).
18 “Failure to make such an inquiry is procedural error but such error may be harmless if there
19 is no actual conflict between the VE’s testimony and the DOT,” id., “or if the vocational
20 expert had provided sufficient support for her conclusion so as to justify any potential
21 conflicts.” Massachi, 486 F.3d at 1153 n.19.
22 Plaintiff’s RFC limited her to performing a range of light work for six hours sitting
23 and four hours standing/walking in an eight-hour workday. AR at 15. The Commissioner
24 defines “light work” as work that “involves lifting no more than 20 pounds at a time with
25 frequent lifting or carrying of objects weighing up to 10 pounds,” and may require “a good
26 deal of walking or standing, or . . . sitting most of the time with some pushing and pulling
27 of arm or leg controls.” 20 C.F.R. § 404.1567(b). According to the DOT, a job is
28 considered light work “(1) when it requires walking or standing to a significant degree;” or
1 (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or
2 leg controls; and/or (3) when the job requires . . . constant pushing and/or pulling of
3 materials even though the weight of those materials is negligible.” DOT, App’x C,
4 available at 1991 WL 688702.
5 The ALJ determined that Plaintiff could not perform the full range of light work.
6 Her “ability to perform all or substantially all of the requirements of this level of work has
7 been impeded by additional limitations.” AR at 27. The ALJ questioned the vocational
8 expert whether jobs existed in the national economy for someone with Plaintiff’s RFC.
9 Id.at 27, 44-46. The vocational expert testified that someone with Plaintiff’s age, education,
10 work experience, and RFC “would be able to perform the requirements of representative
11 occupations such as” marker (DOT 209.587-034), routing clerk (DOT 222.687-022), and
12 inspector (DOT 559.687-074). Id. at 27-28, 45. Consistent with SSR 00-4p, the ALJ
13 explicitly asked the vocational expert if his testimony was “consistent with the DOT.” Id.
14 at 46. The vocational expert testified that it was. Id.
15 Plaintiff argues the ALJ failed to resolve a conflict in that the DOT’s definition of
16 light work requires the ability to stand and walk approximately six hours of an eight-hour
17 workday. Dkt. No. 9 at 20. She argues her limitation to only four hours of standing and
18 walking in a workday creates an apparent conflict that the ALJ failed to resolve. Id. at 20-
19 21. But the DOT “lists maximum requirements of occupations as generally performed, not
20 the range of requirements of a particular job as it is performed in specific settings. A VE
21 . . . or other reliable source of occupational information may be able to provide more
22 specific information about jobs or occupations than the DOT.” SSR 00-4p at 3. In other
23 words, not every light work job will require the ability to walk six out of eight hours in a
24 workday. Furthermore, the “vocational expert testified that the sit/stand limitation to four
25 hours is not inconsistent with the DOT since each of the occupations allow for sit/stand
26 options at will.” Id. at 28. Plaintiff asserts this testimony is inaccurate because “the DOT
27 narrative descriptions of the jobs identified do not support the notion that these jobs require
28 at least four hours of sitting” and because the “ability to sit/stand at will does not convey
1 the ability to accumulate at last four hours of sitting in a workday.” Dkt. No. 13 at 5-6.
2 The narrative descriptions may not affirmatively state that sitting is permitted for at least
3 four hours in a workday, but the absence of those words does not evince an “obvious or
4 apparent” conflict that would trigger the ALJ’s duty to inquire further, especially
5 considering the vocational expert’s testimony that someone with Plaintiff’s RFC could
6 perform these jobs. Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017) (“We have
7 explained that the conflict must be obvious or apparent to trigger the ALJ’s obligation to
8 inquire further.”). And “[i]mportantly, even where the evidence of record is “susceptible
9 to more than one rational interpretation,” the Court “must defer to the Commissioner’s
10 interpretation of the evidence.” Terry v. Saul, 998 F.3d 1010, 1013 (9th Cir. 2021).
11 In conclusion, the vocational expert’s opinion “was supported by [his] unchallenged
12 expertise and [his] reference to the Dictionary of Occupational Titles. This constituted
13 substantial evidence in support of the ALJ’s finding that [Plaintiff] could perform jobs
14 existing in significant numbers in the national economy.” Terry, 998 F.3d at 1013 (citing
15 Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020) (“qualified vocational expert’s testimony
16 as to the number of jobs existing in the national economy that a claimant can perform is
17 ordinarily sufficient by itself to support an ALJ’s step-five finding”)).
18 B. Substantial Evidence Supports the ALJ’s Decision
19 Having found no legal error in the ALJ’s decision, the Court turns to the question of
20 whether the RFC, and the ALJ’s conclusion based on the RFC that Plaintiff was not
21 disabled, is supported by substantial evidence. The Court has independently assessed the
22 entire record, “weighing the evidence both supporting and detracting from the [ALJ’s]
23 conclusion.” Ahearn, 988 F.3d at 1115. Based on this review, the Court finds substantial
24 evidence supports the ALJ’s decision. The Court summarizes that evidence below.
25 The record confirms Plaintiff suffers from the severe impairments listed above. See,
26 e.g., AR at 74-76, 194, 275-77, 314-24, 379-80, 390-400, 412-14. The record reflects
27 frequent complaints of pain associated with these conditions, id. at 210-23, 416-22, 573-
28 650, 678, 960-65, as well as reports of mental symptoms noted by the ALJ as “anxiety,
1 depression, panic attacks, hypervigilance, irritability when in social situations, frequent
2 nocturnal awakenings, low motivation, difficulty trusting people, hopelessness, passive
3 thoughts of suicidal ideation, poor energy, low appetite, low motivation, social isolation,
4 and difficulty concentrating, remembering and completing tasks.” Id. at 20, 57, 87, 416-
5 419, 474, 521, 537.
6 Plaintiff reported in her Adult Function Report that her daily activities included
7 praying and meditating, reading, attending doctors’ appointments, caring for her spouse,
8 sister, mom, and dogs, preparing meals, shopping and completing chores, and spending
9 quality time with loved ones (although her impairments “affect [her] daily care” and make
10 some of these activities more difficult). Id. at 216-223. Plaintiff’s hearing testimony
11 echoes this report. Id. at 39-42. Plaintiff’s spouse provided a “Social Security Witness
12 Statement.” Id. at 262. The spouse reports observing Plaintiff struggle with completing
13 physical tasks around the home, understanding others and communicating, and managing
14 her pain. Plaintiff’s elder sibling also provided a statement. Id. at 263-64. The sibling
15 similarly reports observing Plaintiff struggle to effectively communicate and manage her
16 pain and emotions. Id.
17 The Court has reviewed the record and verified numerous medical records over the
18 years indicating Plaintiff had “clear and coherent” thought process, “grossly intact”
19 memory, and “intact” judgment. See supra IV-A-1. Other administrative medical findings,
20 such as Dr. Kertay’s medical interrogatory response, similarly show Plaintiff was able to
21 understand, remember, and carry out simple instructions and make judgments on “simple
22 work-related decisions,” and was only mildly limited in her ability to do the same with
23 complex instructions. Id. at 1035-37.
24 The Court finds the foregoing is relevant and substantial evidence adequate to
25 support the ALJ’s RFC, and the subsequent determination based on Plaintiff’s RFC that
26 she was not disabled. Accordingly, the ALJ’s decision will not be disturbed. See Ahearn,
27 988 F.3d at 1115 (“If substantial evidence in the record supports the ALJ’s decision we
28 must defer to the ALJ.”); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner
1 || of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”).
2 Vv.
3 CONCLUSION
4 For the foregoing reasons, the Court concludes the ALJ’s decision was not legally
5 |;}erroneous and that his determination that Plaintiff is not disabled was supported by
6 substantial evidence in the record. Plaintiffs request for reversal and remand is therefore
7 |{DENIED. The final decision of the Commissioner of Social Security is AFFIRMED.
8 || The Clerk of the Court shall enter judgment accordingly and terminate the case.
9
10 || IT ISSO ORDERED.
11 || Dated: August 21, 2025

14 United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11126403. Public record. Not legal advice.