The opinion
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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
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10 PETER W., Case No.: 25-cv-1709-AGS-DDL
11 Plaintiff,
REPORT AND
12 v. RECOMMENDATION FOR
ORDER AFFIRMING
13 FRANK BISIGNANO, Commissioner COMMISSIONER’S DECISION
14 of Social Security, AND ENTERING JUDGMENT
Defendant. IN COMMISSIONER’S FAVOR
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18 The undersigned respectfully submits this Report & Recommendation to United
19 States District Judge Andrew G. Schopler pursuant to 28 U.S.C. § 636(b) and Civil Local
20 Rule 72.1.c. Plaintiff Peter W. (“Plaintiff”) appeals the Commissioner’s denial of his
21 application for social security benefits pursuant to 42 U.S.C. § 405(g) and requests remand
22 to the Social Security Administration for an award of benefits or, alternatively, further
23 proceedings. For the reasons stated below, the Court RECOMMENDS the
24 Commissioner’s decision be AFFIRMED.
25 / / /
26 / / /
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1 I.
2 BACKGROUND
3 A. Plaintiff’s Application for Disability Benefits
4 On June 6, 2022,1 Plaintiff applied for a period of disability and disability insurance
5 benefits under Titles II and XVIII of the Social Security Act (“the Act”). Certified
6 Administrative Record (“AR”) [Dkt. No. 8] at 221-22. Plaintiff alleges that he has been
7 unable to work since July 1, 2016, due to his disabling impairments. Id. Plaintiff’s
8 application was denied at the initial stage and upon reconsideration. Id. at 85, 98. Plaintiff
9 then requested a hearing before an administrative law judge (“ALJ”), which took place on
10 October 30, 2023, before ALJ Howard Treblin. Id. at 10, 61-84. The ALJ held a second
11 hearing on October 2, 2024 after obtaining additional evidence which warranted medical
12 testimony. Id. at 10, 44-60. Plaintiff appeared with counsel and testified at both hearings.
13 See id. at 44-84. Vocational expert Nelly Kastell testified at the October 30, 2023 hearing.
14 See id. at 61-84. Medical expert Dr. Michael Lace and vocational expert Joseph Young
15 testified at the October 2, 2024 hearing. See id. at 44-60.
16 The ALJ issued an unfavorable opinion on December 18, 2024, concluding that
17 Plaintiff “was not disabled under sections 216(i) and 223(d) of the Social Security Act
18 through December 31, 2021, the last date insured.” Id. at 27. On June 6, 2025, the Appeals
19 Council denied review, and the ALJ’s decision became final. Id. at 1-3.
20 B. Summary of the ALJ’s Findings
21 A person is considered “disabled” within the meaning of the Act if they suffer from
22 a medically determinable physical or mental impairment which is expected to last at least
23 a year and is of such severity that they cannot work, considering their age, education, and
24 work experience. 42 U.S.C. § 423(d). To qualify for benefits, an individual must be
25 insured for disability insurance benefits. 42 U.S.C. § 423(a)(1)(A). The applicant bears
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1 The ALJ’s opinion states that Plaintiff applied on June 3, 2022 [AR at 10] but Plaintiff’s
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1 the burden of establishing that they were either “permanently disabled or subject to a
2 condition which became so severe as to disable [them] prior to the date upon which [their]
3 disability insured status expired,” in this case being December 31, 2021. Walls v. Astrue,
4 282 F. App'x 568, 570 (9th Cir. 2008).
5 The Administration employs a sequential five-step evaluation to make this
6 determination.2 The ALJ followed this five-step process in adjudicating Plaintiff’s
7 disability claim. See generally AR at 12-27. At step one, the ALJ found that Plaintiff had
8 not engaged in substantial gainful activity from the alleged onset date, July 1, 2016, through
9 his date last insured, December 31, 2021. Id. at 12.
10 At step two, the ALJ found Plaintiff had the following severe impairments through
11 the date last insured: “right elbow lateral epicondylitis; right elbow cubital tunnel syndrome
12 status post right elbow lateral epicondylar debridement and release surgery; attention
13 deficit hyperactivity disorder (ADHD), major depressive disorder, bipolar disorder, and
14 generalized anxiety disorder.” Id. at 13. Plaintiff claimed other impairments that the ALJ
15 found were non-severe: hypertension, gastroesophageal reflux disease, sinusitis, mild
16 methamphetamine use disorder in sustained remission, and obesity. Id. Plaintiff also
17 claimed a back impairment, which the ALJ found was not a medically-determinable
18 impairment through the date last insured. Id. at 14.
19 At step three, the ALJ found that through the date last insured, Plaintiff’s
20 impairments or combination of impairments did not meet or medically equal the severity
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23 2 The ALJ must determine the following: at step one, whether the claimant is engaged in
substantial gainful activity; at step two, whether the claimant suffers from a severe
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impairment within the meaning of the regulations; at step three (if the claimant suffers from
25 a severe impairment), whether the impairment meets or is medically equal to one of the
impairments identified in the Listing of Impairments; at step four, the claimant’s residual
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functional capacity (“RFC”) based on all impairments and whether, given the RFC, the
27 claimant can perform his or her past relevant work; at step five, whether the claimant can
make an adjustment to other work based on his or her RFC. If the claimant is found not
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1 of a listed impairment. Id. at 14.
2 At step four, the ALJ determined that despite his impairments, through his date last
3 insured Plaintiff had the residual functional capacity (“RFC”) to “perform a full range of
4 work at all exertional levels” subject to the following “non-exertional limitations”:
5 The claimant can occasionally lift and or carry up to 100 pounds and
6 frequently lift and/or carry up to 20 pounds. The claimant can sit for 4 hours
7 at a time, stand for 4 hours at a time and walk for 4 hours at a time. The
8 claimant can sit for 8 hours in an 8-hour workday; walk for 8 hours in an 8-
9 hour workday; and stand for 8 hours in an 8-hour workday. The claimant can
10 continuously use his hands for all manipulation including reaching in all
11 directions, and handling, fingering, and feeling, pushing and pulling. The
12 claimant can continuously use foot control bilaterally. The claimant can
13 continuously perform postural functions including climbing ramps, stairs,
14 ladders, ropes and scaffolds, and the ability to balance, stoop, kneel, crouch
15 and crawl. The claimant can have continuous exposure to environmental
16 elements such as extreme cold; extreme heat; wetness; humidity; noise;
17 vibration; fumes, odors, dusts, gases, poor ventilation, etc.; hazards and
18 operating a motor vehicle. The claimant can be exposed to very loud noise.
19 Cognitively, the claimant can perform unskilled work with daily work quotas,
20 but no fast-paced or assembly line work.
21 Id. at 18.
22 In formulating the foregoing RFC, the ALJ considered “all symptoms and the extent
23 to which these symptoms can reasonably be accepted as consistent with the objective
24 medical evidence and other evidence.” Id.
25 Regarding Plaintiff’s physical limitations, the ALJ considered Plaintiff’s subjective
26 testimony regarding his abilities, which primarily concerned Plaintiff’s right arm. Id. at
27 19. The ALJ found that Plaintiff’s “medically determinable impairments could reasonably
28 be expected to cause the alleged symptoms,” but that Plaintiff’s “statements concerning the
1 intensity, persistence and limiting effects of these symptoms are not entirely consistent
2 with the medical evidence.” Id. at 19. In making this determination, the ALJ considered
3 medical records which noted improvements in Plaintiff’s mobility and strength following
4 two surgeries on his right arm and the lack of ongoing treatment during the alleged period
5 of disability. Id. at 19-20. The ALJ concluded that “the limitation to frequently lifting and
6 carrying 20 pounds adequately accounts for the claimant’s right elbow lateral epicondylitis
7 and right elbow cubital tunnel syndrome status post right elbow lateral epicondylar
8 debridement and release surgery.” Id.
9 Regarding Plaintiff’s mental limitations, the ALJ stated that the RFC “includes
10 mental limitations to address the claimant’s ADHD, major depressive disorder, generalized
11 anxiety disorder, [and] bipolar disorder.” Id. The ALJ considered Plaintiff’s testimony that
12 he has difficulty staying focused, remembering things, and maintaining a routine, and that
13 he gets anxious around people. Id. at 19. The ALJ found that “medical evidence does not
14 support greater limitations in the residual functional capacity” because of medical
15 treatment records that reflected emotional stability, intact memory and concentration, and
16 low to average intellectual functioning. Id. at 21. Additionally, the ALJ considered
17 Plaintiff’s testimony that he was able to care for himself, drive a car, and coach youth
18 football. Id. at 22.
19 The ALJ determined that Plaintiff has no past relevant work. Id. at 26. At Step Five,
20 the ALJ concluded that “based on the testimony of the vocational expert…through the date
21 last insured, considering the claimant’s age, education, work experience, and residual
22 functional capacity, the claimant was capable of making a successful adjustment to other
23 work that existed in significant numbers in the national economy.” Id. at 27. Specifically,
24 the vocational expert testified that an individual with Plaintiff’s age, education, work
25 experience, and RFC could work as a dishwasher, store laborer, or commercial cleaner. Id.
26 Based on the five factors above, the ALJ concluded that Plaintiff was not under a
27 disability, as defined in the Social Security Act, at any time from July 1, 2016, the alleged
28 onset date, through December 31, 2021, the date last insured. Id.
1 II.
2 ISSUES PRESENTED
3 Plaintiff identifies four issues on appeal, as follows:
4 1) Whether the ALJ met his burden of proof at Step Five where the jobs exceed the
5 RFC;
6 2) Whether the ALJ provided a mental residual functional capacity finding in
7 accordance with SSR 85-16;
8 3) Whether the ALJ addressed the combination of impairments in the RFC;
9 4) Whether the ALJ provided clear and convincing reasons to disregard Mr.
10 Weinert’s statements.
11 Dkt. No. 10 at 7.
12 III.
13 STANDARD OF REVIEW
14 The Court’s review of the Commissioner’s final decision is “highly
15 deferential.” Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023). The Court “will
16 disturb the denial of benefits only if the decision contains legal error or is not supported by
17 substantial evidence.” Id. “Substantial evidence is such relevant evidence that a
18 reasonable mind might accept as adequate to support a conclusion, and must be more than
19 a mere scintilla, but may be less than a preponderance.” Id. The Court must review the
20 entire record and consider adverse as well as supporting evidence. See Ahearn v. Saul, 988
21 F.3d 1111, 1115 (9th Cir. 2021). The Court “may not reweigh the evidence or substitute
22 [its] judgment for that of the ALJ.” Id. Moreover, “[t]he ALJ is responsible for
23 determining credibility, resolving conflicts in medical testimony, and for resolving
24 ambiguities.” Id. If the evidence is susceptible of more than one rational interpretation,
25 the Court must uphold the ALJ’s decision. See id. at 1115-16. However, the Court cannot
26 affirm “on a ground upon which [the ALJ] did not rely.” Garrison v. Colvin, 759 F.3d 995,
27 1010 (9th Cir. 2014). Where the ALJ commits legal error, the Court may affirm the
28 decision if the error is harmless, meaning “it is inconsequential to the
1 ultimate nondisability determination, or that, despite the legal error, the agency’s path may
2 reasonably be discerned, even if the agency explains its decision with less than ideal
3 clarity.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “[T]he burden of
4 showing that an error is harmful normally falls upon the party attacking the agency’s
5 determination.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), superseded on
6 other grounds by 20 C.F.R. § 404.1502(a).
7 IV.
8 DISCUSSION
9 A. Plaintiff Has Not Demonstrated Harmful Error
10 With the foregoing legal standards in mind, the Court addresses each of the disputed
11 issues above. The Court will first address the issues related to the ALJ’s formation of the
12 RFC at Step Four, and then will address the Step Five issue.
13 1. Mental residual functional capacity
14 Plaintiff argues that the ALJ failed to properly capture Plaintiff’s mental limitations
15 in the RFC as required by 20 C.F.R. §1520(a). Dkt. No. 10 at 8. Specifically, Plaintiff
16 asserts that the RFC does not address his moderate limitations in concentration, persistence
17 or pace, as required by Stubbs-Danielson v. Astrue, 529 F.3d 1169 (9th Cir. 2008). The
18 RFC limits Plaintiff to “unskilled work with daily work quotas, but no fast-paced or
19 assembly line work.” AR at 18. Plaintiff asserts that the ALJ failed to discuss “the
20 relationship between unskilled work and concentration, persistence, and pace.” Dkt. No.
21 10 at 8. The Court disagrees.
22 “[A]n ALJ’s assessment of a claimant adequately captures restrictions related to
23 concentration, persistence, or pace where the assessment is consistent with restrictions
24 identified in the medical testimony.” Stubbs-Danielson, 529 F.3d at 1174. In Stubbs-
25 Danielson, the Ninth Circuit found that the ALJ’s RFC adequately captured the claimant’s
26 mental limitations. Id. Medical experts opined that the claimant had moderate limitations
27 in pace and mild to moderate limitations in other mental functions, but that she could
28 nevertheless “carry out simple tasks,” such as housework, shopping, and cooking. Id. at
1 1173. The RFC provided that the claimant could “perform simple, routine, repetitive
2 sedentary work, requiring no interaction with the public.” Id. The Ninth Circuit found that
3 the ALJ had properly weighed the opinions and translated the limitations into the concrete
4 restriction of simple tasks in the RFC. Id.
5 Here, the ALJ similarly translated Plaintiff’s mental limitations into an appropriate
6 concrete restriction in the RFC. The ALJ found that Plaintiff had a mild3 limitation in
7 understanding, remembering, or applying information; a mild limitation in interacting with
8 others; a moderate limitation in concentrating, persisting, or maintaining pace; and a mild
9 limitation in adapting or managing himself. AR at 15-17. The ALJ based these
10 determinations on Plaintiff’s own testimony, Plaintiff’s 2021 psychiatric intake
11 examination, Plaintiff’s medical records, and Plaintiff’s February 2024 consultative
12 examination. Id. For Plaintiff’s moderate limitation in concentration, persistence, and
13 pace, the ALJ considered Plaintiff’s testimony that he had issues focusing and maintaining
14 a routine and his ADHD diagnosis. Id. at 16. The ALJ weighed this evidence against
15 Plaintiff’s 2021 psychiatric intake evaluation, which indicated that his concentration was
16 grossly intact, and the positive notes regarding Plaintiff’s concentration throughout his
17 medical records. Id. Although Plaintiff’s concentration was assessed to be “very low” at
18 the February 2024 consultative examination, the ALJ found that in the context of the other
19 medical records, this did not support a finding that Plaintiff had such concentration issues
20 prior to his date last insured, December 31, 2021. Id. Additionally, Plaintiff’s “very low”
21 concentration score was further offset by Plaintiff’s average fund of knowledge score and
22 low-average intellectual functioning score. Id. at 17. The ALJ also considered evidence
23 from Plaintiff’s daily routines, such as his ability to manage his finances, coach youth
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26 3 The ALJ states both that “[i]n understanding, remembering or applying information, the
27 claimant had a mild limitation,” and that “the claimant had more than a mild limitation in
understanding, remembering, or applying information as of the date last insured.” AR at
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1 football, and drive a car without issues in concentration. Id.
2 The ALJ incorporated Plaintiff’s moderate limitation in concentration, persistence,
3 and pace in the RFC by limiting him to “unskilled work with daily work quotas, but no
4 fast-paced or assembly line work.” Id. at 18. These restrictions match the limitations
5 expressed by Dr. Lace at the hearing on October 2, 2024. Id. at 46. When asked what
6 functional capabilities or limitations Plaintiff would have in the workplace, Dr. Lace
7 opined that “the only limitation really would fall under concentration, persistence, and
8 pace” and that “based on the record the claimant would be much better suited to a work
9 setting where there are no more than daily work quotas, and where there are no fast-paced
10 production requirements.” Id. at 49. The ALJ followed up to clarify that “unskilled work
11 would be okay,” and Dr. Lace answered affirmatively. Id. The RFC is consistent with the
12 restrictions in Dr. Lace’s testimony. Just as in Stubbs-Danielson, the ALJ “translated
13 [Plaintiff’s] condition, include the pace and mental limitations, into the only concrete
14 restrictions available to him.” 539 F.3d at 1174. Accordingly, the Court concludes the
15 ALJ’s RFC properly incorporated Plaintiff’s mental limitations.
16 2. Combination of physical and mental impairments
17 Plaintiff argues that the ALJ failed to address the combination of his physical and
18 mental impairments, specifically regarding his chronic fatigue and pain. Dkt. No. 10 at 9.
19 Id. Plaintiff asserts that his medical records document chronic fatigue beginning in 2020,
20 particularly as noted by psychiatrist Dr. Andres Ricardo Scheeberger, and pain caused by
21 curvature of the cervical spine as documented in records from Kaiser Permanente. Id. at
22 11. However, Plaintiff does not explain how the RFC is deficient as a result of the ALJ’s
23 alleged failure to consider chronic fatigue or pain.
24 As an initial matter, Plaintiff has failed to demonstrate harmful error. Plaintiff does
25 not explain how he believes the RFC would differ had chronic fatigue or pain been properly
26 considered. The court “may not reverse an ALJ’s decision on account of an error that is
27 harmless,” and “the burden of showing than an error is harmful normally falls upon the
28 party attacking the agency’s determination.” Molina, 674 F.3d at 1111.
1 Even looking beyond Plaintiff’s failure to meet his burden, the Court finds that the
2 ALJ properly considered both chronic fatigue and pain in formulating the RFC. First, the
3 ALJ did consider Plaintiff’s chronic fatigue. Plaintiff’s argument relies primarily on the
4 documentation of chronic fatigue in his medical records. Dkt. No. 10 at 10-11. Plaintiff
5 cites medical records where chronic fatigue is listed as an “active problem,” but none
6 discuss the condition or its effects on Plaintiff’s capabilities in detail. Dkt. No. 10 at 10
7 (citing AR at 737, 747, 755, 766, 772, 901, 907, 923, 930, 953, 973). Further, the earliest
8 of these records is from December 2020, and the majority are after December 2021.
9 Plaintiff claims that his “comprehensive metabolic blood panel reveals CFS [chronic
10 fatigue syndrome],” but the record shows only that a panel was performed on March 31,
11 2022, with an associated diagnosis of chronic fatigue, not chronic fatigue syndrome.4 Dkt.
12 No. 10 at 11; AR at 633. Finally, Plaintiff relies on the opinion of Dr. Scheeberger, a
13 psychiatrist who evaluated Plaintiff on August 25, 2022 and noted that Plaintiff was
14 “suffering from chronic fatigue and an overall sense of lack of motivation without lack of
15 energy.” Dkt. No. 10 at 11 (citing AR at 769).
16 The ALJ considered Plaintiff’s subjective account of fatigue, and he concluded that
17 it was not supported by the record. AR at 19. The ALJ found that Plaintiff’s “mental health
18 treatment records through December 2021 (i.e. the date last insured) do not make reference
19 to the claimant subjectively reporting or objectively needing 5 to 6 hours or rest during the
20 day” and opined that Plaintiff’s chronic fatigue issues may have arisen after his date last
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4 Plaintiff argues that the ALJ “was required to address chronic fatigue syndrome,” Dkt.
23 No. 10 at 11, but there is no evidence that Plaintiff has been diagnosed with Chronic Fatigue
Syndrome. The CDC has a published framework for evaluating and diagnosing Chronic
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Fatigue Syndrome, which no doctor followed in Plaintiff’s case. Compare Reddick v.
25 Chater, 157 F.3d 715 (9th Cir. 1998) (finding that a claimant who had been diagnosed with
Chronic Fatigue Syndrome following extensive treatment and lab testing was entitled to
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benefits). Chronic Fatigue Syndrome is “persistent or relapsing fatigue lasting six or more
27 consecutive months” that is “accompanied by symptoms such as body aches, low-grade
fevers, memory problems, headaches, and extended flu-like symptoms.” Id. at 726.
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1 insured. Id. at 21. Additionally, the ALJ explained why he found Dr. Scheeberger’s
2 opinion unpersuasive, as the opinion was from more than twelve months after Plaintiff’s
3 date last insured and lacked support from Plaintiff’s preceding mental health records. Id.
4 at 24. The Court finds that the ALJ adequately addressed Plaintiff’s assertions of chronic
5 fatigue on the existing record.
6 Second, Plaintiff argues that the ALJ “did not address the functional limitation as to
7 pain in the RFC.” Dkt. No. 10 at 12. Plaintiff states that he was diagnosed with “decreased
8 motion in his cervical back due to Dowager’s hump with kyphosis chronic trapezius and
9 pain” at a medical visit in August 2015. Id. (citing AR at 373). However, the ALJ
10 determined that Plaintiff’s “alleged back impairment was not a medically-determinable
11 impairment through the date last insured.” AR at 14. In reaching this conclusion, the ALJ
12 considered Plaintiff’s treatment at Kaiser Permanente in 2015, where Plaintiff stated that
13 “he had chronic upper back and neck discomfort for the last 3-4 months” and exhibited a
14 decreased range of motion and poor posture. AR at 374. The ALJ found that there were
15 few other records to support Plaintiff’s claims of back pain between 2015 and his date last
16 insured, December 31, 2021. AR at 14. Indeed, Dr. Dhokarh’s evaluation on April 23,
17 2021, reported no back pain, no deformities, and a full range of motion. The ALJ is only
18 required to consider medically determinable impairments when formulating the RFC. See
19 20 C.F.R. § 404.1545(a)(2). Therefore, because Plaintiff’s back pain was not a medically-
20 determinable impairment, the Court finds Plaintiff has not demonstrated harmful error on
21 the basis of the ALJ’s alleged failure to address pain.
22 Plaintiff also references his major recurrent depression, social difficulties, and
23 migraines. Dkt. No. 10 at 11. Plaintiff does not articulate how the ALJ committed harmful
24 error by failing to consider these factors. Id. In support, Plaintiff points only to medical
25 records from March 2008 documenting moderate major recurrent depression, an anxious
26 mood, and headaches. Id. (citing AR at 808, 811). The ALJ considered Plaintiff’s
27 depression and anxiety, noting the lack of treatment records from the alleged onset date to
28 the date last insured. AR at 16, 20-21. Plaintiff does not offer evidence that migraines
1 were an issue from the alleged onset date through his date last insured. Accordingly, the
2 Court finds the ALJ committed no harmful error in his consideration of these conditions.
3 3. Discounting Plaintiff’s statements
4 Plaintiff argues that the ALJ erred by failing to provide clear and convincing reasons
5 supported by substantial evidence to discount Plaintiff’s testimony. Dkt. No. 10. at 12.
6 Specifically, Plaintiff takes issue with the following “overall finding” by the ALJ:
7 After careful consideration of the evidence, the undersigned finds that the
8 claimant’s medically determinable impairments could reasonably be expected
9 to cause the alleged symptoms; however, the claimant’s statements
10 concerning the intensity, persistence and limiting effects of these symptoms
11 are not entirely consistent with the medical evidence and other evidence in the
12 record for the reasons explained in this decision.
13 AR at 19. Plaintiff argues that the ALJ “asks the reader to guess where the conflict exists
14 as to [Plaintiff’s] statements” and fails to “address chronic fatigue, cervical spine damage,
15 or address pain as discussed above.” Dkt. No. 10 at 13. The Court disagrees.
16 The ALJ “is not required to believe every allegation of disabling pain.” Molina, 674
17 F.3d at 1112. However, in the absence of evidence of malingering, an ALJ must offer
18 “specific, clear and convincing reasons” for rejecting a claimant’s subjective testimony
19 regarding the limitations caused by his impairment. See Ferguson v. O'Malley, 95 F.4th
20 1194, 1198 (9th Cir. 2024); see also Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022)
21 (“an adverse credibility finding must be based on clear and convincing reasons”). “When
22 objective medical evidence in the record is inconsistent with the claimant’s subjective
23 testimony, the ALJ may indeed weigh it as undercutting such testimony.” Id. at 498.
24 At the October 30, 2023 hearing, Plaintiff provided testimony on his mental and
25 physical limitations. AR at 64-77. In regard to his physical condition, Plaintiff discussed
26 the limited functionality of his right hand, agreeing that his right arm was his biggest
27 problem as far as function in the workplace. Id. at 67, 76. Plaintiff stated that he could
28 carry one gallon of milk in his right hand, although it would be painful. Id. at 67.
1 Additionally, he noted that when his right arm is extended, it is “extremely difficult to
2 close,” and that has been the case since July of 2016. Id. at 68. He stated that he could go
3 brief periods of time sitting without having to get up and move around, could stand or walk
4 for about forty-five minutes at a time, and occasionally had difficulty getting up. Id. at 66-
5 67. The ALJ considered Plaintiff’s testimony and explained his reasoning to the extent it
6 was discredited. Regarding Plaintiff’s right arm, the ALJ found Plaintiff’s stated
7 limitations to be contradicted by the “noted improvement in [Plaintiff’s] right elbow
8 impairments” following the January 2018 surgery. Id. at 20. The ALJ noted the May 2018
9 orthopedic examination by Dr. Pallia following Plaintiff’s January 2018 surgery, which
10 showed that he was able to make a fist, straighten his fingers, and utilize a nearly full range
11 of motion with his right arm. Id. at 20. Additionally, the ALJ considered the absence of
12 “ongoing treatment for persistent symptoms or limitations related to [Plaintiff’s] right
13 upper extremity” following the January 2018 surgery. Id. at 20. At a physical examination
14 from April 2021, Plaintiff showed “a full musculoskeletal range of motion with no
15 neurological irregularities.” Id. The ALJ also noted the February 2024 consultative
16 examination, which showed no gross deformity, swelling, warmth, or tenderness in
17 Plaintiff’s right elbow and a “full pain-free range of motion,” though the ALJ noted that
18 this record was after Plaintiff’s date last insured. Id. at 20. The ALJ determined that a
19 limitation to frequently lifting and carrying only twenty pounds adequately accounted for
20 the condition of Plaintiff’s right arm, and the ALJ did not include a limitation on Plaintiff’s
21 ability to reach or grasp with his right arm. Id. The Court finds that the medical records
22 cited by the ALJ are sufficiently clear and convincing to discount Plaintiff’s statements.
23 The ALJ set forth the medical records at odds with Plaintiff’s testimony – the May 2018
24 examination notes, the absence of subsequent treatment, the April 2021 physical
25 examination, and the February 2024 consultative examination and “[c]ontradiction with
26 the medical record is a sufficient basis for rejecting the claimant’s subjective testimony.”
27 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (finding that
28 the ALJ did not err in rejecting the claimant’s testimony that he could lift only 10 pounds
1 occasionally where a doctor opined that he could lift up to 10 pounds frequently); see also
2 Diaz v. O'Malley, No. 23-3165, 2024 WL 4502113, at *1 (9th Cir. Oct. 16, 2024) (finding
3 that the contradiction of medical records with plaintiff’s testimony and evidence of
4 improvement with treatment were “a sufficient basis for the ALJ to decline to credit
5 plaintiff’s testimony”).
6 As to his mental capacity, Plaintiff stated that he has difficulty concentrating, paying
7 attention, and staying focused “all the time.” Id. While he reported a strong long-term
8 memory, he said his short-term memory was “not too hot.” Id. at 70. He reported getting
9 paranoid and anxious around other people and having difficulty socializing. Id. at 70. He
10 stated that he could go out on his own for tasks but that it was difficult. Id. at 74. He
11 discussed a lack of motivation and fear. Id. at 74-75. Id. at 71. Plaintiff also stated that
12 he must rest for five or six hours each day. Id. at 69.
13 The ALJ set forth “several reasons that the medical evidence of claimant’s mental
14 impairments does not support greater limitations in the residual functional capacity,”
15 despite Plaintiff’s testimony. Id. at 21. The ALJ notes the results of Plaintiff’s April 2021
16 mental status exam, which showed that Plaintiff was “oriented to person, place, and time;
17 his attention/concentration were grossly intact; his memory was grossly intact; his insight
18 and judgment were intact; he had an appropriate mood and affect; and he was described as
19 emotionally stable.” Id. The ALJ referred to multiple mental status examinations ranging
20 from April 21, 2021 to December 16, 2021 wherein Plaintiff was reported to be polite,
21 cooperative, alert, and oriented, with no memory deficits noted. Id. Additionally, the ALJ
22 stated that no medical records referenced Plaintiff’s reported need to rest five to six hours
23 a day. Id. The ALJ also considered Plaintiff’s mental status at the February 2024
24 consultative examination, which reflected intellectual functioning in the low average range.
25 Id. While the February 2024 examination showed “very low” working memory and
26 concentration and calculations, the ALJ concluded that in the context of the record as a
27 whole, and considering that the examination took place more than two years after the date
28 last insured, this did “not support a finding that [Plaintiff] had this same memory or
1 concentration issues prior to the date last insured.” Id. Finally, the ALJ noted that between
2 the alleged onset date and the date last insured, Plaintiff coached youth football and drove
3 a car, both of which require concentration and memory. Id. at 22. Again, the Court finds
4 that the ALJ sufficiently set forth the medical records at odds with Plaintiff’s testimony.
5 Based on the foregoing analysis, the Court finds the ALJ provided “specific, clear
6 and convincing” reasons for his credibility determination, by “enumerat[ing] the objective
7 evidence that undermine[d] [Plaintiff’s] testimony,” Kitchen, 82 F.4th at 739, and
8 “explain[ing] why the medical evidence is inconsistent with the claimant’s subjective
9 testimony.” Ferguson, 95 F.4th at 1200 (emphasis in original). The Court is therefore
10 persuaded that the ALJ did not “arbitrarily discredit [the] claimant’s testimony.” Thomas
11 v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The Court finds the ALJ’s credibility
12 determination is adequately supported, and declines to “engage in second-guessing” that
13 determination. See id. at 959; see also Brown-Hunter, 806 F.3d at 494 (“[T]he credibility
14 determination is exclusively the ALJ’s to make, and [the Court’s] only to review.”).
15 4. Jobs matching the RFC
16 Plaintiff argues that the ALJ erred at Step Five because he “failed to address
17 [Plaintiff]’s inability to focus and concentrate as seriously limited due to chronic fatigue,
18 pain, and mental limitations,” and “all jobs require the worker to be focused and alert.”
19 Dkt. No. 10 at 7. This argument is duplicative of Plaintiff’s Step Four arguments and fails
20 to establish harmful error for the reasons set forth above.
21 Plaintiff further argues that the three identified jobs – dishwasher, store laborer, and
22 commercial cleaner – are skilled jobs and therefore conflict with the RFC, which limits
23 Plaintiff to unskilled work. Id. at 8. The ALJ’s decision erroneously refers to these jobs
24 as skilled, see AR at 27, but they are all unskilled by definition. Each of the jobs has an
25 SVP of 2, which refers to the amount of time required by a typical worker to reach average
26 performance in particular job. “Using the skill level definitions in 20 C.F.R. 404.1568 and
27 416.956, unskilled work corresponds to an SVP of 1-2.” SSR 00-4p, 2000 WL 1898704,
28 at *3. “[T]he regulatory definitions of skill levels are controlling.” Id. Accordingly,
1 Plaintiff’s argument that the ALJ erred by providing skilled jobs is without merit. The jobs
2 provided by the ALJ are unskilled jobs and consistent with the RFC.
3 B. Substantial Evidence Supports the ALJ’s Decision
4 Having found no legal error in the ALJ’s treatment of the record or formulation of
5 Plaintiff’s RFC, the Court turns to the question of whether the RFC, and the ALJ’s
6 conclusion based on the RFC that Plaintiff was not disabled, is supported by substantial
7 evidence. The Court has independently “assess[ed] the entire record, weighing the evidence
8 both supporting and detracting from the [ALJ’s] conclusion.” See Ahearn, 988 F.3d at
9 1115. Based on this review, the Court finds substantial evidence supports the ALJ’s
10 decision.
11 The record confirms Plaintiff is impaired by right elbow lateral epicondylitis and
12 right elbow cubital tunnel syndrome status post right elbow lateral epicondylar
13 debridement and release surgery. In July 2016, Plaintiff sought treatment for soreness and
14 tenderness in his right elbow, which he reported had been going on for two months. AR at
15 365. A nerve study in September 2016 showed a mild right wrist median sensory
16 neuropathy at the carpal tunnel region. Id. at 869. An MRI revealed a high-grade
17 intrasubstance tear and tendinosis of the common extensor tendon of the lateral epicondyle,
18 leading to Plaintiff’s surgery in May 2017 for lateral humeral epicondylar release,
19 debridement of the common extensor tendon and extensor carpi radialis brevis tendon, and
20 osteotomy of the lateral humeral epicondyle in his right elbow. Id. at 869. In December
21 2017, Plaintiff reported numbness and tingling in his fingers and difficulty spreading his
22 right hand. Id. at 870. The doctor reported that Plaintiff showed continued cubital tunnel
23 syndrome and recommended a further surgery for a right elbow anterior subcutaneous
24 transposition of the ulnar nerve and right arm placement of a long arm posterior splint,
25 which Plaintiff underwent in January 2018. Id. at 882.
26 The record reflects an improvement in Plaintiff’s condition following the January
27 2018 surgery. By February 2018, Plaintiff had no numbness or tingling in his fingers, and
28 by May 2018, Plaintiff showed only “a little bit of tenderness” in the elbow caused by
1 hitting his elbow on some surface. Id. at 887, 897. The May 2018 examination reported
2 that Plaintiff experienced “moderate discomfort” with forceful gripping, grasping, and
3 pulling activities with his right hand and could make a fist and straighten his fingers. Id.
4 at 897-98. The doctor opined that Plaintiff “has permanent work restrictions which
5 preclude him from no heavy lifting or carrying greater than 15 lb and no forceful gripping
6 and grasping with the right arm.” Id. at 898. Plaintiff did not seek further treatment for
7 his right arm following the second surgery. After Plaintiff’s date last insured he continued
8 to exhibit a limitation in his right arm strength. See id. at 990 (February 2024 orthopedic
9 examination showing a grip strength of 10 pounds in his right hand, as opposed to 51
10 pounds in his left).
11 The record also confirms that Plaintiff has been diagnosed with ADHD, major
12 depressive disorder, bipolar disorder, and generalized anxiety disorder. These conditions
13 are noted in his medical records, and he is prescribed medication to treat them. See, e.g.,
14 AR at 343, 357, 362, 366, 372, 412, 467, 496, 507. At a psychiatric exam in April 2021,
15 Plaintiff reported that he had been experiencing more depression and had been
16 experiencing anxiety at times. Id. at 568. As to his ADHD, Plaintiff reported that he had
17 difficulty completing tasks, was unable to remember things, and could not focus on tasks.
18 Id. However, the results of his mental status exam noted that Plaintiff was oriented to
19 person, place, and time; had a grossly intact memory, attention, and concentration; had
20 intact insight and judgment; and exhibited a linear and organized thought process. Id. at
21 571. At subsequent visits, medical records reflect that Plaintiff was alert and oriented and
22 exhibited no memory deficits. Id. at 506, 511, 517, 525, 532. At the February 2024
23 psychological examination, Plaintiff reported that he could make independent decisions,
24 manage his finances, make meals, and maintain basic grooming and hygiene on his own.
25 Id. at 1004. The mental status exam showed that Plaintiff had clear, coherent, and organized
26 thought processes; had cognitive functioning in the low average range; had an average fund
27 of knowledge; and had memory, concentration, and calculation skills in the very low range.
28 Id. at 1004. The examiner opined that Plaintiff could understand, remember and carry out
1 simple one or two step job task instructions with no impairment. Id. at 1005. He had mild
2 impairments in his ability to do detailed and complex tasks, relate to others, and maintain
3 concentration, attention, persistence and pace. Id. at 1006.
4 The record shows that Plaintiff’s complaints of back pain were not consistent from
5 the alleged onset date through the date last insured. At a doctor’s visit on August 31, 2015,
6 Plaintiff reported “chronic upper back and neck discomfort for the past 3-4 months,” and
7 said “he thinks it started around the same time that he was installing sheet metal and the
8 wind caught a piece and twisted causing him to twist as well.” AR at 373. The doctor
9 noted that the pain was “most likely due to poor posture and chronic trapezius strain” and
10 referred Plaintiff to physical therapy. Id. at 374. At a physical therapy evaluation in 2020,
11 Plaintiff complained of dull aching pain in his low to mid back. Id. An x-ray showed “no
12 acute osseous abnormality within the lumbosacral spine.” Id. at 602. The medical record
13 notes that Plaintiff had no functional mobility assistance needs and had no loss of range of
14 motion in flexion or side bending. Id. at 603. At Plaintiff’s February 2024 orthopedic
15 consultation, he had no tenderness in his neck or spine and exhibited a full pain-free range
16 of motion. Id. at 991.
17 The Court finds the foregoing is relevant and substantial evidence adequate to
18 support the ALJ’s RFC, and the subsequent determination based on Plaintiff’s RFC that he
19 was not disabled. Accordingly, the ALJ’s decision will not be disturbed. See Ahearn, 988
20 F.3d at 1115 (“If substantial evidence in the record supports the ALJ’s decision we must
21 defer to the ALJ.”); see also 42 U.S.C.A. § 405(g) (“[t]he findings of the Commissioner of
22 Social Security as to any fact, if supported by substantial evidence, shall be conclusive”).
23 V.
24 CONCLUSION
25 For the foregoing reasons, the Court concludes the ALJ followed the law and that
26 his determination that Plaintiff is not disabled is supported by substantial evidence in the
27 record. The undersigned accordingly RECOMMENDS that the District Court issue an
28 order: (1) approving and adopting this Report and Recommendation in its entirety; (2)
1 denying Plaintiff's request for remand for an award of benefits; (3) affirming the decision
2 the Commissioner; and (4) directing that judgment be entered in the Commissioner’s
3 || favor.
4 IT IS HEREBY ORDERED that any objections to this Report and
5 || Recommendation must be filed by not later than August 7, 2026. Any response to a party’s
6 || objections must be filed by not later than August 21, 2026. Failure to timely file objections
7 || may waive the right to raise those objections on appeal. See Turner vy. Duncan, 158 F.3d
8 ||449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156 (9th Cir. 1991).
9 || IS SO ORDERED. ait
10 Dated: July 23, 2026 Tbild Lhe
12 United States Magistrate Judge
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