Opinion

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ANASTASIA JOY STEIN, No. 2:24-cv-01007-EFB (SS)

12 Plaintiff,

13 v. ORDER

14 FRANK BISIGNANO,

Commissioner of Social Security,1

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Defendant.

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17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

18 denying her application for Social Security Disability benefits and Supplemental Security Income

19 under Titles II and XVI of the Social Security Act. ECF No. 1. Pending before the court are the

20 parties’ cross-motions for summary judgment. ECF Nos. 14, 15.2 For the reasons provided

21 below, plaintiff’s motion for summary judgment is granted in part, and the matter is remanded to

22 the agency.

23 ////

24 ////

25 1 Frank Bisignano is substituted as Defendant pursuant to Federal Rule of Civil Procedure

26 25(d).

27 2 The parties have consented to the jurisdiction of a United States Magistrate Judge for all

proceedings in this action, including judgment, pursuant to 28 U.S.C. 636(c)(1). ECF No. 6.

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1 I. Background

2 On July 2, 2021, plaintiff filed an application for disability insurance benefits under Titles

3 II and XVI of the Social Security Act, alleging disability beginning October 27, 2020.

4 Administrative Record (AR) 17, 265-72.3 Plaintiff alleged disability due to post-traumatic stress

5 disorder, depression, lower back pain, bilateral carpal tunnel syndrome, irregular heartbeat,

6 asthma, bilateral planta fasciitis, and anemia. AR 122, 124, 311-12. Plaintiff’s application was

7 denied on November 8, 2021, AR 190-94, and her request for reconsideration was denied on

8 March 3, 2022. AR 196-204. She requested a hearing before an Administrative Law Judge,

9 which was held by telephone on February 7, 2023. AR 75-120, 205-06, 244-48. On August 2,

10 2023, the ALJ issued a decision finding plaintiff not disabled. AR 14-42. Plaintiff sought review

11 to the Appeals Council, which denied review on March 12, 2024, AR 1-6, and, on April 3, 2024,

12 plaintiff initiated the instant action. ECF No. 1.

13 II. Legal Standard

14 A. The Disability Standard

15 To qualify for disability insurance benefits under the Social Security Act, a claimant must

16 show he is unable “to engage in any substantial gainful activity by reason of any medically

17 determinable physical or mental impairment4 which can be expected to result in death or which

18 has lasted or can be expected to last for a continuous period of not less than 12 months.” 42

19 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five-step sequential evaluation

20 process to be used in determining if a claimant is disabled. 20 C.F.R. § 404.1520; Batson v.

21 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in the sequential

22 evaluation in assessing whether the claimant is disabled are:

23 ////

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25 3 Defendant lodged the administrative record on July 24, 2024. ECF No. 10.

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4 A “physical or mental impairment” is one resulting from anatomical, physiological, or

27 psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques. 42 U.S.C. § 423(d)(3).

28

1 Step one: Is the claimant presently engaged in substantial gainful activity? If so,

the claimant is not disabled. If not, proceed to step two.

2

Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or

3 her ability to work? If so, proceed to step three. If not, the claimant is not

disabled.

4

Step three: Does the claimant’s impairment, or combination of impairments, meet

5 or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the

claimant is disabled. If not, proceed to step four.

6

Step four: Does the claimant possess the residual functional capacity (“RFC”) to

7 perform his or her past relevant work? If so, the claimant is not disabled. If not,

proceed to step five.

8

Step five: Does the claimant’s RFC, when considered with the claimant’s age,

9 education, and work experience, allow him or her to adjust to other work that

exists in significant numbers in the national economy? If so, the claimant is not

10 disabled. If not, the claimant is disabled.

11 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). At each of these five

12 steps, “the ALJ is responsible for determining credibility, resolving conflicts in medical

13 testimony, and for resolving ambiguities.’” Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir. 2020).

14 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). In steps one through four, the

15 burden of proof is on the claimant. Ford, 950 F.3d at 1148. A claimant establishes a prima facie

16 case of qualifying disability once he has carried the burden of proof from step one through step

17 four. Ibid.

18 Before making the step four determination, the ALJ first must determine the claimant’s

19 RFC. Batson, 359 F.3d at 1194; see 20 C.F.R. § 416.920(e). The RFC is “the most [one] can still

20 do despite [his] limitations” and represents an assessment “based on all the relevant evidence.”

21 20 C.F.R. § 404.1545(a)(1). A determination of RFC is not a medical opinion, but a legal

22 decision that is expressly reserved for the Commissioner. See 20 C.F.R. § 404.1527(d)(2) (RFC

23 is not a medical opinion); 20 C.F.R. § 404.1546(c) (identifying the ALJ as responsible for

24 determining RFC); see also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“[I]t is the

25 responsibility of the ALJ, not the claimant’s physician, to determine residual functional

26 capacity.”).

27 At step five, the burden shifts to the Commissioner, who must then show that there are a

28 significant number of jobs in the national economy that the claimant can perform given his RFC,

1 age, education, and work experience. 20 C.F.R. § 404.1520(g); Batson, 359 F.3d at 1194. If the

2 claimant can perform other work in the national economy, then the claimant may not be found to

3 be disabled. Ibid.

4 B. Standard of Review

5 Congress has provided that an individual may obtain judicial review of any final decision

6 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In

7 determining whether to reverse an ALJ’s decision, the court reviews only those issues raised by

8 the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001).

9 The court must find the Commissioner’s decision conclusive if it is supported by substantial

10 evidence. 42 U.S.C. § 405(g); Biestek v. Berryhill, 587 U.S. 97, 99 (2019). “Substantial evidence

11 is relevant evidence which, considering the record as a whole, a reasonable person might accept

12 as adequate to support a conclusion.” Thomas v. Barnhart (Thomas), 278 F.3d 947, 954 (9th Cir.

13 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995));

14 see also Dickinson v. Zurko, 527 U.S. 150, 153 (1999) (comparing the substantial-evidence

15 standard to the deferential clearly-erroneous standard). “[T]he threshold for such evidentiary

16 sufficiency is not high.” Biestek, 587 U.S. at 103. Rather, “[s]ubstantial evidence means more

17 than a scintilla, but less than a preponderance; it is an extremely deferential standard.” Thomas v.

18 CalPortland Co. (CalPortland), 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and

19 citations omitted); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Even if the

20 ALJ has erred, the Court may not reverse the ALJ’s decision where the error is harmless, Stout,

21 454 F.3d at 1055-56, and the burden of showing that an error is not harmless “normally falls upon

22 the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

23 In conducting its analysis, the “reviewing court must consider the entire record as a whole

24 and may not affirm simply by isolating a specific quantum of supporting evidence.” Hill v.

25 Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880,

26 882 (9th Cir. 2006)). The court may not affirm the ALJ on a ground upon which she did not rely;

27 rather, the court may review only the reasons stated by the ALJ in her decision. Orn v. Astrue,

28 495 F.3d 625, 630 (9th Cir. 2007); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.

1 2003). Further, if the evidence “is susceptible to more than one rational interpretation, it is the

2 ALJ’s conclusion that must be upheld.” Ford, 950 F.3d at 1154 (quoting Burch v. Barnhart, 400

3 F.3d 676, 679 (9th Cir. 2005)).

4 III. The ALJ’s Findings of Fact and Conclusions of Law

5 In his August 21, 2023 decision, the ALJ found plaintiff not disabled and made the

6 following findings:

7 1. The claimant meets the insured status requirements of the Social Security Act

8 through December 31, 2021.

9 2. The claimant has not engaged in substantial gainful activity since October 27,

10 2020, the alleged onset date (20 CFR 404.1571 et seq.).

11 3. The claimant has the following severe impairments: asthma; chronic obstructive

12 pulmonary disease (COPD); carpal tunnel syndrome; depressive disorder; and

13 posttraumatic stress disorder (PTSD) (20 CFR 404.1520(c) and 416.920(c)).

14 4. The claimant does not have an impairment or combination of impairments that

15 meets or medically equals the severity of one of the listed impairments in 20 CFR

16 Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

17 5. After careful consideration of the entire record, the undersigned finds that the

18 claimant has the residual functional capacity to perform light work as defined in 20

19 CFR 404.1567(b) and 416.967(b) such that she can lift and carry 20 pounds

20 occasionally and 10 pounds frequently; and can stand and walk six hours out of an

21 eight-hour workday; she can sit six hours out of an eight-hour workday; she can

22 occasionally climb, stoop, kneel, crouch, and crawl; she can frequently balance;

23 she can occasionally perform fine fingering with the dominant right upper

24 extremity; she must avoid even moderate exposure to fumes, odors, dusts, gases,

25 and poor ventilation; she must avoid concentrated exposure to workplace hazards,

26 such as dangerous machinery and unprotected heights; she can understand,

27 remember, and carry out simple instructions; she can tolerate occasional

28 interaction with coworkers; she can tolerate no interaction with the general public;

1 and she can tolerate occasional workplace changes.

2 6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and

3 416.965).

4 7. The claimant was born on June 22, 1977 and was 43 years old, which is defined

5 as a younger individual age 18-49, on the alleged disability onset date (20 CFR

6 404.1563 and 416.963).

7 8. The claimant has at least a high school education (20 CFR 404.1564 and

8 416.964).

9 9. Transferability of job skills is not material to the determination of disability

10 because using the Medical-Vocational Rules as a framework supports a finding

11 that the claimant is “not disabled,” whether or not the claimant has transferable job

12 skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

13 10. Considering the claimant’s age, education, work experience, and residual

14 functional capacity, there are jobs that exist in significant numbers in the national

15 economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969,

16 and 416.969a).

17 11. The claimant has not been under a disability, as defined in the Social Security

18 Act, from October 27, 2020, through the date of this decision (20 CFR 404.1520(g)

19 and 416.920(g)).

20 AR 19-38.

21 IV. Analysis

22 Plaintiff raises three issues on review. First, plaintiff asserts that the ALJ erred in finding

23 plaintiff’s lumbar facet arthropathy with ligamentous buckling at L4-L5 “not severe” at step two

24 of the sequential evaluation, and that such error was not harmless. ECF No. 14 at 6. Second,

25 plaintiff argues that the ALJ erred in his analysis of plaintiff’s RFC insofar as he discounted the

26 impairments relating to her asthma and COPD. ECF No. 14 at 11-16. Finally, plaintiff asserts

27 that the ALJ erred in his evaluation of the medical source opinion of examining provider, Montez

28 McCarthy, Psy.D., when determining plaintiff’s RFC. ECF No. 14 at 6, 16-23. The court

1 concludes that plaintiff has shown she is entitled to summary judgment and remand on one of her

2 claimed grounds.

3 A. Claimed Error in Step Two Determination

4 At step two, the ALJ must determine whether the claimant had severe impairments during

5 the period for which she seeks disability benefits. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment

6 is severe if it “significantly limits” an individual's “ability to do basic work activities.” 20 C.F.R.

7 § 404.1520(c). The purpose of step two is screen out frivolous claims by “identifying at an early

8 stage those claimants whose medical impairments are so slight that it is unlikely they would be

9 found to be disabled even if their age, education, and experience were taken into account.”

10 Bowen v. Yuckert, 482 U.S. 137, 153 (1987). As such, to succeed at step two, a claimant need

11 only make a de minimus showing to establish that her impairment is severe within the meaning of

12 the regulations. Glanden v. Kijakazi, 86 F.4th 838, 843-44 (9th Cir. 2023); Webb v. Barnhart,

13 433 F.3d 683, 686 (9th Cir. 2005); see also Bowen, 482 U.S. at 147.

14 Here, plaintiff takes issue with the ALJ’s finding at step two, that plaintiff “has the

15 following severe impairments: asthma; chronic obstructive pulmonary disease (COPD); carpal

16 tunnel syndrome; depressive disorder; and posttraumatic stress disorder (PTSD),” AR 21, because

17 it was premised on the ALJ’s having found plaintiff’s “medically determinable impairment of

18 degenerative disc disease of the lumbar spine . . . nonsevere because it does not significantly limit

19 the ability to perform basic work activities for 12 consecutive months.” AR 21; see ECF No. 14 at

20 8. Plaintiff argues that the latter finding was unreasonable because it was unsupported by the

21 evidence and, as such, remand is appropriate to develop the record adequately. ECF No. 14 at 6-

22 11.

23 Plaintiff’s argument fails as a matter of law. As the Court of Appeals has explained, step

24 two of the ALJ’s sequential analysis serves merely as a screening function and, if a claim survives

25 step two’s screening, the ALJ’s findings at step two do not define the scope of the ALJ’s analysis

26 in the remainder of the steps. Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). More

27 specifically, whether a particular impairment is determined to be “severe” or “not severe” at step

28 two is immaterial to the ALJ’s determination of a claimant’s RFC, which “‘consider[s] limitations

1 and restrictions imposed by all of [the claimant’s] impairments, even those that are not ‘severe.’’”

2 Id. at 1049 (quoting Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims,

3 Social Security Ruling (“SSR”) 96-8p). Ergo, where a claim has not been denied at step two,

4 alleged error at step two can never be cause for remand because, once the claimant has cleared the

5 step-two hurdle, the ALJ’s findings at that step have no continued legal relevance to the findings

6 in the subsequent steps nor to, ultimately, the determination of disability. Ibid.; see M.M. v.

7 O’Malley, 732 F. Supp. 3d 1126, 1133 (N.D. Cal. 2024).

8 Plaintiff’s claim of reversible error at step two, therefore, fails. Plaintiff acknowledges

9 that the ALJ found at step two that she did possess severe impairments and did not deny the claim

10 at this step. See ECF No. 14 at 1-2. Although implicit in this determination was the ALJ’s

11 additional finding that plaintiff’s degenerative disc disease was not severe, that finding caused no

12 harm to plaintiff, as her claim was not denied at step two. See Buck, 869 F.3d at 1048-49.

13 Consequently, even if that finding was in error, such error is not cognizable as a basis for remand.

14 See ibid.

15 Plaintiff briefly argues that the ALJ improperly failed to account for her degenerative

16 spinal disc disease when conducting the step five analysis, ECF No. 14 at 11, and, in her Reply

17 brief, argues that the record further indicates that the ALJ erroneously failed to account for

18 plaintiff’s degenerative spinal disc disease when determining her RFC. ECF No. 17 at 5.

19 Arguments raised for the first time in a reply brief are not properly before the court and cannot be

20 the basis for relief. See United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006); Cedano–Viera

21 v. Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003); Eberle v. City of Anaheim, 901 F.2d 814,

22 818 (9th Cir. 1990); Anderson v. Colvin, 223 F. Supp. 3d 1108, 1131 (D. Or. 2016). Nonetheless,

23 plaintiff’s arguments fail on the merits. Plaintiff does not show error in the ALJ’s RFC or step 5

24 analyses. Although the ALJ did not discuss plaintiff’s nonsevere degenerative disc disease

25 specifically in his discussions of the RFC determination and the step 5 analysis, the ALJ stated

26 that he considered plaintiff’s nonsevere impairments, including her spinal disc disease, when

27 determining her RFC and, in turn, whether she was disabled at step 5, AR 22, 25, 37, and, in his

28 step 2 analysis, which identified the specific reasons from the record evidence why he discounted

1 plaintiff’s testimony describing the severity and duration of her purported limitations on use of

2 her back due to the disc disease. AR 21. Thus, the entirety of the ALJ’s RFC and step 5

3 determinations are supported by substantial evidence. See Lambert v. Saul, 980 F.3d 1266, 1277

4 (9th Cir. 2020); AR 17-38. See also AR 394-400, 417, 511-14, 576, 809-12, 829-31, 857; see AR

5 21 (citing same).

6 Plaintiff also fails to show any error was not harmless. See Molina v. Astrue, 674 F.3d

7 1104, 1115 (9th Cir. 2012). Despite finding plaintiff’s spinal disc disease not severe, the ALJ

8 also found plaintiff only capable of performing light work, with limitations on her capacities to

9 lift objects, climb, stoop, kneel, crouch, and crawl. AR 25. Plaintiff fails to identify how the

10 RFC or step 5 determinations would have differed in a way that would have been more favorable

11 to her, had the ALJ found her degenerative disc disease to have been severe. See Shinseki, 556

12 U.S. at 409. As such, she fails to prove that she was prejudiced in some way by the claimed error.

13 See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 n.2 (9th Cir. 2009) (plaintiff “does

14 not detail what other physical limitations follow from the evidence of his knee and should

15 injuries, besides the limitations already listed in the RFC. We reject any invitation to find that the

16 ALJ failed to account for [plaintiff’s] injuries in some unspecified way.”). For all of these

17 reasons, plaintiff’s claim of error at step two fails.

18 B. Challenges to RFC Determination

19 1. Plaintiff’s Breathing Dysfunction

20 Plaintiff argues that the ALJ’s RFC finding was not supported by substantial evidence

21 because the ALJ, without specific, clear, and convincing reasons, discounted plaintiff’s testimony

22 describing the severity and extent of her breathing dysfunction symptoms. ECF No. 14 at 14-16.

23 Specifically, plaintiff argues that the ALJ unreasonably rejected plaintiff’s testimony that she

24 could not work 5 to 7 days per month due to her chronic obstructive pulmonary disease (COPD).

25 ECF No. 14 at 14-15 (citing AR 27-29, 102-03). Upon review of the record, the court concludes

26 the ALJ’s determination was supported by substantial evidence. See Biestek, 587 U.S. at 99.

27 In support of her application for disability, plaintiff presented evidence of her diagnosis of

28 COPD, its effects on her functioning, and her treatment for same. Among this evidence was

1 plaintiff’s hearing testimony that, inter alia, she could not work five to seven days each month

2 due to her COPD symptoms. AR 102-03. The ALJ found that plaintiff had COPD and that it

3 constituted a severe impairment, AR 20, and found her to have an RFC to perform light work

4 with limitations on her ability to carry heavy objects, climb, stoop, kneel, crouch, and crawl and

5 limited by the requirement that she avoid even moderate exposure to fumes, odors, dusts, gases,

6 and poor ventilation. AR 25. In reaching this determination, the ALJ considered plaintiff’s

7 testimony describing the severity of her impairments in functioning due to COPD, as well as the

8 treatment records for same that she had submitted. AR 27-29. He concluded that, although

9 plaintiff’s “medically determinable impairments could reasonably be expected to cause the

10 alleged symptoms,” her “statements concerning the intensity, persistence and limiting effects of

11 these symptoms are not entirely consistent with the medical evidence and other evidence.” AR

12 29. Specific to plaintiff’s testimony at issue here, the ALJ explained,

13 The claimant further alleged that she has difficulty breathing due to chronic

obstructive pulmonary disease (COPD) and she claimed that breathing problems

14 would prevent her from working five to seven days per month (Testimony).

Although the medical evidence of record shows the claimant has a history of

15 medical treatment for asthma and COPD (Exs. 1F, pp. 5-10; 2F, pp. 67-70; 4F,

pp. 7-54; 5F, pp. 45-48; 10F, pp. 2-7), the undersigned finds little to no

16 objective medical evidence that supports the loss of functioning due to COPD

alleged by the claimant. The claimant’s medical treatment records reflect limited

17 and intermittent objective findings of tachypnea and/or wheezing in November

2020 (Ex. 1F, p. 7), April 2021 (Ex. 4F, p. 26), May 2021 (Ex. 4F, p. 23), and

18 January 2022 (Ex. 4F, pp. 8-9). Despite these findings, the claimant exhibited no

respiratory distress and her pulmonary effort remained normal (Exs. 1F, p.

19 7; 4F, pp. 8-9, 23, 26). While the claimant’s medical history and objective

findings related to asthma and COPD may support a degree of functional

20 limitation, the undersigned finds little to no additional and persistent objective

medical findings that support the severity of breathing-related symptoms and loss

21 of functioning alleged by the claimant.

22 AR 31. Additionally, plaintiff’s claims concerning the intensity and duration of her respiratory

23 symptoms did not accord with evidence of her daily activities, including her work history. Ibid.

24 The ALJ also observed that plaintiff’s treatment records indicated that her COPD symptoms

25 could be sufficiently controlled by compliance with proscribed treatment. AR 31-32. Finally, the

26 ALJ found persuasive the prior administrative medical findings of Dr. H. Arora, which were

27 consistent with the record as a whole, and which had recommended the same RFC that the ALJ

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1 ultimately found here. AR 32-33.

2 On this record, substantial evidence supported the ALJ’s decision not to include in the

3 RFC the limitation that plaintiff cannot work five to seven days per month. “When a claimant

4 presents objective medical evidence establishing an impairment ‘that could reasonably produce

5 the symptoms of which she complains, an adverse credibility finding must be based on clear and

6 convincing reasons.’” Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022) (quoting Carmickle v.

7 Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008) (cleaned up)). Here, the ALJ

8 provided clear and convincing reasons, based on the record before him, that justify the ALJ’s

9 determination that the severity of plaintiff’s respiratory impairments was not as debilitating as she

10 had described in her testimony. He observed that although some of plaintiff’s medical records

11 indicated treatment for wheezing or tachypnea after the date of claimed disability onset, AR 31

12 (citing AR 391, 590-91, 605, 608), in these visits, plaintiff’s overall lung functioning was

13 described as reflecting normal pulmonary effort and no respiratory distress. AR 31 (citing AR

14 391, 590-91, 605, 608). The ALJ also observed that plaintiff’s treatment records indicated that

15 her symptoms of pulmonary distress appeared to respond to prescribed treatments. AR 31 (citing

16 AR 389-94, 500-03, 588-636, 798-801, 892-97). He also observed that her evidence of daily

17 activities, particularly her employment history, belied her testimony that her symptoms of

18 respiratory distress were so intense and persistent as to preclude her from activities for five to

19 seven days per month beginning at the claimed disability onset date. AR 31. These reasons by

20 the ALJ are sufficiently clear and convincing to justify the ALJ’s rejection of part of plaintiff’s

21 testimony. See, e.g., Smartt, 53F.4th at 497-500 (holding ALJ had clear and convincing reasons

22 to discount claimant’s subjective pain testimony where the objective medical evidence and

23 evidence of claimant’s daily activities was inconsistent with the claimed limitations and plaintiff

24 had followed a conservative treatment plan for her claimed pain); Molina, 674 F.3d at 1113

25 (holding ALJ reasonably discounted claimant’s testimony where it conflicted with evidence of

26 claimant’s daily activities); Chaudhry v. Astrue, 688 F.3d 661, 672-73 (9th Cir. 2012) (holding

27 ALJ was reasonable in relying on objective medical evidence of claimant’s functioning over

28 claimant’s subjective testimony); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161

1 (9th Cir. 2008) (holding ALJ reasonably relied on physician’s assessment of claimant’s lifting

2 capability in lieu of claimant’s self-report, as “[c]ontradiction with the medical record is a

3 sufficient basis for rejecting the claimant’s subjective testimony”); Osenbrock v. Apfel, 240 F.3d

4 1157, 1165-66 (9th Cir. 2001) (affirming an ALJ’s rejection of claimant’s allegations of disabling

5 pain, as they conflicted with records from her physical examinations). Plaintiff has not shown

6 that in this respect the ALJ’s RFC finding lacked substantial evidence to support it.

7 2. Failure to Properly Evaluate Opinion of Dr. Montez McCarthy

8 Plaintiff argues that the RFC determination was made in error because the ALJ failed to

9 include, and failed to account for the exclusion of, certain clinical opinions expressed by Dr.

10 Montez McCarthy. Among other findings, Dr. McCarthy found that plaintiff had a moderate-to-

11 marked limitation in her “ability to maintain regular attendance in the workplace, deal with the

12 usual stresses encountered in competitive work, and to complete a normal workday or workweek

13 without interruptions resulting from any psychiatric condition.” ECF No. 14 at 18 (citing AR

14 867). The ALJ partially credited this opinion, finding that only a moderate limitation in these

15 areas was supported by the evidence, but rejected the finding that plaintiff had marked limitation

16 in these areas. AR 35-36. Plaintiff argues that, nonetheless, the RFC erroneously failed to

17 account for even moderate limitations in these areas. ECF No. 14 at 18. Defendant responds that

18 the moderate limitations were encapsulated in the RFC’s provisions that plaintiff “can understand,

19 remember, and carry out simple instructions; she can tolerate occasional interaction with

20 coworkers; she can tolerate no interaction with the general public; and she can tolerate occasional

21 workplace changes.” AR 25; see ECF No. 15 at 14-18.

22 The record supports Defendant. The limitations expressed in the relevant area in the

23 RFC—relating to plaintiff’s abilities vis-à-vis instructions, interactions with coworkers and the

24 public, and tolerance of workplace changes generally—were reasonable and consistent with the

25 evidence before the ALJ, including Dr. McCarthy’s findings. Although they did not employ the

26 exact language or limitations utilized by Dr. McCarthy, they encapsulated the moderate

27 impairments Dr. McCarthy identified in plaintiff’s abilities to follow instructions, work with

28 others, and stay on task. See generally Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.

1 2008) (ALJ must translate the limitations expressed by medical providers into a succinct RFC);

2 see, e.g., Spencer v. Kijakazi, No. 1:21-cv-00065-AWI-BAM, 2022 WL 4482567, at *7 (E.D.

3 Cal. Sept. 27, 2022) (“courts within this district have found that a serious or marked impairment

4 in the ability to deal with the usual stress encountered in a competitive workplace is adequately

5 addressed by a limitation to ‘simple repetitive tasks’” (collecting cases)), report and

6 recommendation adopted, 2023 WL 184974 (E.D. Cal. Jan. 13, 2023); Garza v. Comm’r of Soc.

7 Sec., No. 1:21-cv-00403-BAK (SAB), 2022 WL 2974691, at *11 (E.D. Cal. July 27, 2022)

8 (“Likewise, the Ninth Circuit and its district courts have also concluded a claimant’s low

9 tolerance for stress or moderate limitations in dealing with changes are encompassed in an RFC

10 of simple, repetitive tasks.” (collecting cases)).

11 To the extent that the RFC failed to include any limitation on plaintiff’s ability to maintain

12 regular work attendance, as indicated by Dr. McCarthy’s findings, that failure was also supported

13 by the substantial evidence. See ECF No. 14 at 18-20; ECF No. 17 at 1-4. Although the ALJ

14 found Dr. McCarthy’s findings partially persuasive, he also found persuasive the findings of Dr.

15 Ying, who had concluded that plaintiff could “understand and carry out simple instructions; . . .

16 sustain simple tasks for 40-hour work weeks; . . . tolerate a limited public contact setting; and . . .

17 adapt to changes in a work setting,” as those findings were consistent with plaintiff’s overall

18 treatment history. AR 34. It was not error for the ALJ to endeavor to reconcile the disparate

19 medical opinions before him in light of the totality of the evidence; in fact, this approach reflects

20 the ALJ undertaking the very analysis the regulations require of him. 20 C.F.R. §§ 404.1520(e),

21 404.1520c(a), 404.1527(d)(2), 404.1545(a), 404.1546(c); 416.945(a); see Tommasetti v. Astrue,

22 533 F.3d 1035, 1041-42 (9th Cir. 2008) (“[T]he ALJ is the final arbiter with respect to resolving

23 ambiguities in the medical evidence.”); Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir.

24 2007) (“When evaluating the medical opinions of treating and examining physicians, the ALJ has

25 discretion to weigh the value of each of the various reports, to resolve conflicts in the reports, and

26 to determine which reports to credit and which to reject.”); Benton v. Barnhart, 331 F.3d 1030,

27 1040 (9th Cir. 2003) (where “the record contains conflicting medical evidence, the ALJ is

28 charged with determining credibility and resolving the conflict”); see generally Vertigan, 260

1 F.3d at 1049 (“It is clear that it is the responsibility of the ALJ, not the claimant’s physician, to

2 determine residual functional capacity.”). Thus, the fact that the RFC does not track exactly the

3 limitations expressed by Dr. McCarthy does not render the ALJ’s determination lacking in

4 substantial evidence. See Stubbs-Danielson, 539 F.3d at 1174.

5 3. Partial Rejection of Dr. McCarthy’s Opinion

6 Finally, plaintiff argues that the RFC determination was not premised on substantial

7 evidence, because the ALJ rejected Dr. McCarthy’s opinion insofar as it identified marked

8 limitations in plaintiff’s mental functioning, without addressing the supportability of Dr.

9 McCarthy’s opinion. ECF No. 14 at 20-23. The court finds the ALJ’s determination flawed in

10 this respect, such that remand is appropriate.

11 Dr. McCarthy rendered a clinical opinion of plaintiff’s mental functioning after having

12 examined her personally and reviewed some of her medical records. AR 860-61. In his

13 functional assessment of plaintiff, he concluded she showed moderate to marked limitations in

14 her “[a]bility to understand, remember, and perform detailed and complex written and oral

15 instructions over an eight-hour day, 40-hour work week without emotionally decompensating;”

16 her “[a]bility to maintain regular attendance in the workplace, deal with the usual stresses

17 encountered in competitive work, and able to complete a normal workday or workweek without

18 interruptions resulting from any psychiatric condition(s);” her “[a]bility to relate and interact with

19 coworkers and the public.” AR 867.

20 In considering this opinion, the ALJ credited that plaintiff had moderate limitations in

21 these areas, but rejected Dr. McCarthy’s opinion that plaintiff’s limitations were marked. In

22 explaining the reason for the partial rejection, the ALJ found:

23 the marked limitations assessed by Dr. McCarthy are overly restrictive and not

supported by any other objective medical evidence in the case record. As

24 mentioned above, the claimant received mental health treatment for posttraumatic

stress disorder (PTSD) and depression, including psychotherapy and medication

25 management (Exs. 2F, pp. 51-56, 86-87, 94-97, 101-102, 106-107, 111-122, 130-

134, 141-142; see also 5F, pp. 32-33, 64-65, 72-75, 79-80, 84-85, 89-100).

26 However, the claimant’s treatment record reflect mental status examination

findings that were limited to rapid or slow speech and anxious or depressed mood,

27 with other mental status findings remaining unremarkable and within normal

limits, including cooperative attitude, normal thought process, normal thought

28 content, intact memory, adequate attention, developmentally appropriate

1 reasoning, good impulse control, developmentally appropriate judgment and

insight, and no suicidal thoughts (Ex. 2F, pp. 53, 55, 87, 95, 97, 102, 107, 112,

2 114, 116, 122). In light of the limited positive, objective mental status findings

demonstrated in the case record, the undersigned finds the assessment of marked

3 functional mental limitations determined by Dr. McCarthy is inconsistent with

and not supported by medical evidence as a whole.

4

5 AR 36.

6 Under current regulations, the factors the agency employs for evaluating the

7 persuasiveness of medical opinions and prior administrative medical findings include

8 supportability, consistency, relationship with the claimant, specialization, and “other factors that

9 tend to support or contradict a medical opinion or prior administrative medical finding”

10 (including, but not limited to, “evidence showing a medical source has familiarity with the other

11 evidence in the claim or an understanding of our disability program's policies and evidentiary

12 requirements”). 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The most important of

13 these factors are “supportability and consistency.” Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th

14 Cir. 2022); 20 C.F.R. § 404.1520c(b)(2). “Supportability means the extent to which a medical

15 source supports the medical opinion by explaining the relevant . . . objective medical evidence.

16 Consistency means the extent to which a medical opinion is consistent . . . with the evidence from

17 other medical sources and nonmedical sources in the claim.” Woods, 32 F.4th at 791-92 (internal

18 citations and quotations omitted). The regulations provide that “an ALJ cannot reject an

19 examining or treating doctor’s opinion as unsupported or inconsistent without providing an

20 explanation supported by substantial evidence,” which includes that the ALJ must articulate how

21 persuasive they find all provided medical opinions and explain the supportability and consistency

22 factors of those opinions. Id. at 792; see 20 C.F.R. § 404.1520c(b)(2) (“The factors of

23 supportability . . . and consistency . . . are the most important factors we consider when we

24 determine how persuasive we find a medical source’s medical opinions or prior administrative

25 medical findings to be. Therefore, we will explain how we considered the supportability and

26 consistency factors for a medical source’s medical opinions or prior administrative medical

27 findings in your determination or decision.”).

28 ////

1 Plaintiff argues that the ALJ’s partial rejection of Dr. McCarthy’s opinion was flawed in

2 that it failed to address supportability, but only addressed consistency, when evaluating the

3 persuasiveness of Dr. McCarthy’s findings. ECF No. 14 at 20-23. Defendant does not dispute

4 this. See ECF No. 15. The record demonstrates that the ALJ, in explaining why he rejected Dr.

5 McCarthy’s findings in part, only addressed the consistency factor, finding that Dr. McCarthy’s

6 findings that plaintiff suffered from marked limitations in certain areas of functioning were not

7 credible because they were inconsistent with findings and treatments by other clinicians over

8 time. AR 36 (citing treatment notes by other clinicians at AR 484-89, 519-20, 527-30, 534-35,

9 539-40, 544-55, 563-64, 574-75, 785-86, 817-18, 825-28, 832-33, 837-38, 842-53). The ALJ,

10 however, failed to address, even implicitly, the extent to which Dr. McCarthy’s findings were

11 supportable in and of themselves. See AR 36; see generally Jerome J. C. v. O’Malley, 759 F.

12 Supp. 3d 1091, 1109 (E.D. Wash. 2024) (deducing the ALJ’s supportability finding from the

13 record). This failure was legal error. 20 C.F.R. § 404.1520c(b)(2); see Anna C. v. O’Malley, 734

14 F. Supp. 3d 1123, 1133 (D. Or. 2024); Lenord D. v. O’Malley, 758 F. Supp. 3d 1266, 1276 (E.D.

15 Wash. 2024); Boeche v. Kijakazi, No. 23-CV-918-RBM(BLM), 2024 WL 3430576, at *9 (S.D.

16 Cal. July 15, 2024), report and recommendation adopted sub nom. CHARLES B., Plaintiff, v.

17 MARTIN O’MALLEY, Defendant., No. 3:23-CV-0918-RBM-BLM, 2024 WL 5701794 (S.D. Cal.

18 Aug. 1, 2024) (collecting cases).

19 The record as a whole supports remand to the agency as a remedy. When error is

20 established, the court has the discretion to remand or reverse and award benefits. McAllister v.

21 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded under the “credit-as-true”

22 rule for an award of benefits where:

23 the record has been fully developed and further administrative proceedings

would serve no useful purpose; (2) the ALJ has failed to provide legally

24 sufficient reasons for rejecting evidence, whether claimant testimony or

medical opinion; and (3) if the improperly discredited evidence were credited

25 as true, the ALJ would be required to find the claimant disabled on remand.

26 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the

27 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when

28 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within

1 || the meaning of the Social Security Act.” /d. at 1021; see also Dominguez v. Colvin, 808 F.3d

2 | 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative

3 || proceedings would serve no useful purpose, it may not remand with a direction to provide

4 | benefits.”); Treichler, 775 F.3d at 1105 (“Where . . . an ALJ makes a legal error, but the record is

5 || uncertain and ambiguous, the proper approach is to remand the case to the agency.”); see

6 || generally Leon vy. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017) (“[a]n automatic award of

7 || benefits in a disability benefits case is a rare and prophylactic exception to the well-established

8 | ordinary remand rule”).

9 Here, based on the record before it, the court concludes that the rare circumstances that

10 || may result in a direct award of benefits are not present. See Leon, 880 F.3d at 1044; Dominguez,

11 | 808 F.3d at 407. Further administrative proceedings would serve a meaningful purpose by

12 || enabling the ALJ to properly evaluate the medical opinion of Dr. McCarthy, including the

13 || supportability of his opinion, and, based on that evaluation, to make any additional findings

14 || necessary to determine whether plaintiff is disabled within the meaning of the Social Security

15 || Act. See Garrison, 759 F.3d at 1020. The court expresses no opinion regarding how the

16 || evidence should ultimately be weighed, and any ambiguities or inconsistencies resolved, on

17 || remand.

18 V. Conclusion

19 For the foregoing reasons, IT IS HEREBY ORDERED that:

20 1. Plaintiff's motion for summary judgment (ECF No. 14) is granted;

21 2. Defendant’s cross-motion for summary judgment (ECF No. 15) is denied;

22 3. This matter is remanded for further proceedings consistent with this order.

24 || Dated: September 12, 2025 Za? Ulli! 7 elACL*

25 UNITED STATES MAGISTRATE JUDGE

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