The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 OUDREE E-S., Case No.: 23-cv-1655-W-KSC
12 Plaintiff,
REPORT AND
13 v. RECOMMENDATION FOR ORDER
REVIEWING FINAL DECISION OF
14 MARTIN O’MALLEY, Commissioner of
THE COMMISSIONER OF SOCIAL
Social Security,
15 SECURITY
Defendant.
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Plaintiff filed this action challenging the final decision of the Commissioner of
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Social Security denying plaintiff’s claim for benefits. Doc. No. 1. Having reviewed the
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parties’ briefing and the Administrative Record (“AR”), the Court submits this Report and
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Recommendation to the assigned District Judge.
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I. BACKGROUND
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Plaintiff applied for Disability Insurance Benefits on October 27, 2020. 190-96.1 The
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Social Security Administration denied the claim on February 25, 2021. AR 72-83. The
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Administration denied plaintiff’s claim upon rehearing on May 20, 2021. AR 85-103.
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1 The Court adopts the parties’ citations to the certified record in this matter. All other
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1 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on June 24,
2 2021. AR 125-26. Plaintiff, represented by counsel, appeared before the ALJ on May 13,
3 2022. AR 34-66. Plaintiff’s attorney and the ALJ both examined plaintiff at the hearing,
4 and the ALJ received testimony from a vocational expert. Id. After reviewing the
5 documentary evidence in the record and hearing the witnesses’ testimony, on July 28, 2022,
6 the ALJ ultimately concluded plaintiff was not disabled. AR 14-29.
7 The ALJ’s decision followed the five steps prescribed by applicable regulations
8 under which the ALJ must sequentially determine (1) if the claimant is engaged in
9 substantial gainful employment; (2) whether the claimant suffers from a “severe”
10 impairment; (3) if any impairment meets or is medically equal to one of the impairments
11 identified in the regulatory Listing of Impairments; (4) the claimant’s residual functional
12 capacity (“RFC”) and whether the claimant could perform any past relevant work; and (5)
13 whether a claimant can make an adjustment to other work based on his or her RFC. See 20
14 C.F.R. § 404.1250(a)(4); AR 18-19. The ALJ’s evaluation ends if at any individual step
15 the ALJ finds the claimant is or is not disabled. See 20 C.F.R. § 404.1250(a)(4).
16 At step one, the ALJ found plaintiff had not engaged in substantial gainful activity
17 since October 27, 2020, the date of her initial disability application. AR 19. At step two,
18 the claimant found plaintiff had the following severe impairments: lumbar disc
19 degeneration, diabetes mellitus, and essential hypertension. Id. The ALJ also noted the
20 following non-severe impairments: abdominal pain, iron deficiency anemia, vitamin D
21 deficiency, acute gastritis, chronic rhinitis, exercise induced asthma, rectal bleeding,
22 anxiety, and depression. AR 19-20. At step three, the ALJ found none of plaintiff’s
23 impairments met or exceeded the severity of the regulatory listings. AR 21.
24 At step five, the ALJ found plaintiff had the RFC to perform light work, except
25 plaintiff could lift or carry 20 pounds occasionally and 10 pounds frequently, stand or walk
26 for 6 hours and sit for 6 hours in an 8-hour workday, and push or pull as much as she could
27 carry. AR 22. Also, plaintiff had no limitations on her ability to climb ramps or stairs, but
28 she could only occasionally climber ladders, ropes, or scaffolds. Id. The ALJ found plaintiff
1 had no limitations as to balancing, and she could frequently stoop, kneel, and crouch. Id.
2 The ALJ also found plaintiff could only occasionally crawl, and she had to avoid
3 concentrated exposure to extreme heat, cold, humidity, fumes, dust, odors, gases, and poor
4 ventilation. AR 22-23. Finally, the ALJ found plaintiff must avoid unprotected heights and
5 dangerous moving machinery. AR 23.
6 Concluding step four, the ALJ found plaintiff could perform past relevant work as
7 an auto salesperson and a still photographer. AR 27. Finally, at step five, the ALJ found
8 there were jobs in the national economy that plaintiff could also perform, including mail
9 clerk, cleaner/housekeeper, and “[c]an filling and closing machine tender.” AR 28-29. The
10 ALJ accordingly concluded plaintiff was not disabled. AR 29. The Commissioner’s
11 decision became final on July 12, 2023, when the Appeals Council denied plaintiff’s
12 request for review. AR 1-6. This appeal followed.
13 II. STANDARD OF REVIEW
14 This Court will affirm the ALJ’s decision if (1) the ALJ applied the correct legal
15 standards; and (2) the decision is supported by substantial evidence. See Batson v. Comm’r
16 of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under the substantial
17 evidence standard, the Commissioner's findings are upheld if supported by inferences
18 reasonably drawn from the record, and if there is evidence in the record to support more
19 than one rational interpretation, the Court will defer to the Commissioner. Id.
20 Even if the ALJ makes an error, this Court can nonetheless affirm the denial of
21 benefits if such error was “harmless, meaning it was ‘inconsequential to the ultimate
22 nondisability determination.’” Ford v Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting
23 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). The Court’s ability to uphold
24 the ALJ’s decision is limited in that this Court may not make independent findings and
25 therefore cannot uphold the decision on a ground not asserted by the ALJ. See Stout v.
26 Comm’r of the Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
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1 III. ANALYSIS OF THE COMMISSIONER’S DECISION
2 Plaintiff identifies the following issues for review: whether the ALJ’s finding of a
3 non-severe mental impairment was supported by substantial evidence and whether the ALJ
4 properly rejected plaintiff’s subjective symptom testimony. The Court will address each
5 issue in turn.
6 (A) Whether the ALJ Erred by Finding a Non-Severe Mental Impairment
7 Plaintiff argues the ALJ erred by finding her anxiety and depression were non-severe
8 mental impairments. Doc. No. 12 at 4. Even if a step-two non-severity finding is erroneous,
9 any error is harmless when the ALJ includes non-severe impairments in the RFC analysis
10 at step four. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Here, the ALJ
11 concluded plaintiff’s mental impairments were non-severe. AR 20. However, the ALJ
12 correctly noted the obligation at step four to consider the impact of all non-severe
13 impairments on the plaintiff’s RFC. AR 18. Then, at step four, the ALJ fully considered
14 plaintiff’s mental impairments and their impact on her ability to work. AR 23-24. Plaintiff
15 does not attempt to explain how the ALJ’s RFC analysis would have been different if the
16 ALJ had classified the mental impairments as severe. The Court concludes the non-severity
17 finding at step two was therefore inconsequential to the outcome of the Commissioner’s
18 determination, and even if it had been erroneous, it would not be grounds to reverse. See
19 Lewis, 498 F.3d at 911.
20 (B) Whether the ALJ Improperly Rejected Plaintiff’s Subjective Symptom
21 Testimony
22 Plaintiff contends the ALJ erroneously rejected her subjective symptom testimony.
23 See Doc. No. 12 at 9-14. “A claimant's subjective symptoms, if credited, are relevant to the
24 determination of a claimant's [RFC]. . . . The RFC is used at step four to determine if a
25 claimant can do past relevant work and at step five to determine if a claimant can adjust to
26 other work.” Ferguson v. O’Malley, 95 F.4th 1194, 1198 (9th Cir. 2024) (internal citations
27 omitted). “To determine whether a claimant's subjective symptom testimony is credible,
28 the ALJ must engage in a two-step analysis: ‘First, the ALJ must determine whether the
1 claimant has presented objective medical evidence of an underlying impairment which
2 could reasonably be expected to produce the pain or other symptoms alleged.’” Id. at 1199
3 (citing Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)). If step one is satisfied, the
4 ALJ can only reject the plaintiff’s testimony for “clear and convincing reasons,” which
5 ultimately requires the ALJ to “show [their] work.” Id. (citations and internal quotation
6 marks omitted).
7 The ALJ in this case identified the following subjective symptom testimony
8 provided by plaintiff at the hearing:
9 At the hearing, the claimant testified to an inability to work because of back
pain and diabetes. She has throbbing pain in her back with sitting, moving or
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walking. She has to alternate and change positions because of her pain. She
11 has to lay on a pillow or on her side because of the pain. Due to her back pain,
she could lift or carry no more than 5 pounds with her right hand. She could
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sit for 15 minutes, after which she has to change positions. She is unable to sit
13 for long periods because of back pain and stiffness. She could stand for 10
minutes and walk for 5 minutes. She mentions that her feet swell when she
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walks for long periods. She has problems with bending and crawling. Her
15 knees hurt when she puts weight on them. She has fatigue and anemia, and
she tends to feel lethargic during the day. She has insomnia and this causes
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sleep disturbances. She is not able to function during the day because she is
17 tired. She has high blood pressure and this causes her to have racing heartbeat.
She has diarrhea every morning and this takes a couple of hours. She also
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[has] abdominal pain and nausea. Every now and then, she would get large
19 amounts of rectal bleeding. She has asthma and this causes her to have
shortness of breath with exertional activities. She states that she becomes short
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of breath when she goes up the stairs. She uses an inhaler daily to manage her
21 asthma. She also mentions dizziness, nausea and diarrhea as side effects from
her medications.
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23 Mentally, she has depression and anxiety. She states that she has issues with
short term memory and problems maintaining focus and concentration. She
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would normally forget things after five minutes. She needs reminder for her
25 doctors’ appointments and day-to-day activities. She does not socialize with
others and distances herself from people. She only goes outside when she has
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a need to. She lives with her youngest and oldest children. She relies on her
27 daughter to help with daily activities.
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AR 23-24.2 The ALJ found the first prong of the subjective symptom testimony test was
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satisfied because plaintiff’s “medically determinable impairments could reasonably be
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expected to cause the alleged symptoms.” AR 24. However, the ALJ rejected plaintiff’s
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testimony because it was “not entirely consistent with the record.” Id.
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At step two of the subjective symptom testimony analysis, an ALJ must identify
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which testimony is not credible and specifically link that testimony to evidence in the
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record that undercuts the credibility of the testimony. See Brown-Hunter v. Colvin, 806
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F.3d 487, 494 (9th Cir. 2015); accord Ferguson, 95 F.4th at 1200-01. The ALJ may not
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simply make the conclusory statement that plaintiff’s testimony is not credible because it
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is inconsistent with the record and then proceed with an RFC analysis. Brown-Hunter, 806
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F.3d at 493-94. This is because the obligation to provide clear and convincing “reasons”
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for discounting a plaintiff’s testimony is separate and distinct from any obligation to
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summarize record evidence that supports an RFC determination. Id.
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Here, the ALJ provided a boilerplate statement that plaintiff’s testimony was
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inconsistent with the record, and then performed an RFC analysis summarizing medical-
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and other record evidence purportedly supporting the RFC determination. AR 24-27. The
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RFC analysis amounts to little more than summaries of the evidence periodically followed
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by the single-sentence conclusion that “claimant can perform light work with postural and
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environmental limitations to account for deficits from these impairments,” or variations
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thereof. See id. The ALJ did not specifically identify the various impairments identified in
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plaintiff’s testimony. For example, plaintiff identified an inability to walk, sit, or stand for
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more than 5-15 minutes, but nowhere in the ALJ’s RFC analysis does there appear a reason
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why the ALJ found this assertion not credible. Similarly, although plaintiff testified about
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at 9, 11. The Court’s independent examination of the record confirms the ALJ accurately
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1 ||serious difficulties concentrating, the ALJ did not identify this testimony specifically and
2 || link it to evidence that might be used to rebut that testimony. The ALJ failed to identify all
3 other subjective symptoms and rebut them as well. The ALJ’s list of citations to the
4 ||record and series of boilerplate conclusions was insufficient to discharge the duty to
5 ||provide “clear and convincing reasons” for rejecting plaintiff's testimony in this case.
6 || Accordingly, the Court concludes the decision was not supported by substantial evidence.
7 || See Ferguson, 95 F.4th at 1199 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th
8 || Cir. 2007)).
9 IV. CONCLUSION
10 This Court recommends the District Judge enter an order VACATING the final
11 || decision of the Commissioner and REMANDING for further proceedings. On remand, the
12 || ALJ shall reevaluate the record and issue a new decision that properly discharges the
13 || obligation to evaluate plaintiff's subjective symptom testimony.
14 Any objections (or responses thereto) to this Report and Recommendation shall be
15 || filed within the time limits allowed by Federal Rule of Civil Procedure 72(b).
16 IT IS SO RECOMMENDED AND ORDERED
17 || Dated: July 18, 2024 Jk. Kn
19 Hori. Karen 8S. Crawford
United States Magistrate Judge
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