Melchi

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MYRIAH M.,1 No. 3:25-cv-00789-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

Lisa Lang

Lisa Lang Law LLC

5200 SW Meadows Rd., Suite 150

Lake Oswego, OR 97035

Attorney for Plaintiff

Kevin Danielson

Assistant United States Attorney

District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

1 In the interest of privacy, this Opinion uses only the first name and the initial of the last name

of the non-governmental party or parties in this case. Where applicable, this Opinion uses the

same designation for a non-governmental party’s immediate family member.

David Priddy

Special Assistant United States Attorney

Social Security Administration

6401 Security Boulevard

Baltimore, MD 21235

Attorneys for Defendant

HERNÁNDEZ, Senior District Judge:

Plaintiff Myriah M. brings this action seeking judicial review of the Commissioner’s final

decision to deny disability insurance benefits (“DIB”). This Court has jurisdiction pursuant to 42

U.S.C. § 405(g). The Court affirms the Commissioner’s decision.

PROCEDURAL BACKGROUND

Plaintiff applied for DIB on December 12, 2023, alleging an onset date of October 10,

2018. Tr. 53.2 Plaintiff’s date last insured (“DLI”) is June 30, 2022. Tr. 53. Her application was

denied initially and on reconsideration. Tr. 68, 86.

On February 3, 2025, Plaintiff appeared with counsel for a hearing before an

Administrative Law Judge (“ALJ”). Tr. 34. On March 11, 2025, the ALJ found Plaintiff not

disabled. Tr. 30. The Appeals Council denied review. Tr. 1.

FACTUAL BACKGROUND

Plaintiff alleges disability based on posttraumatic stress disorder (“PTSD”), major

depressive disorder, radiculopathy and sciatica of her left lower extremity, retinal migraines,

tension headaches, thoracolumbar strain, intervertebral disc syndrome, and a “rib condition.” Tr.

2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative

record, filed herein as Docket No. 8.

206. At the time of her date last insured, she was 36 years old. Tr. 29. She has at least a high

school education and past relevant work experience as a server. Tr. 28-29.

SEQUENTIAL DISABILITY EVALUATION

A claimant is disabled if they are unable to “engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which . . . has lasted or can

be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C.

§§ 423(d)(1)(A), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step

procedure. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (in

social security cases, agency uses five-step procedure to determine disability). The claimant

bears the ultimate burden of proving disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,

140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines

whether the claimant has a “medically severe impairment or combination of impairments.”

Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not

disabled. Id.

In step three, the Commissioner determines whether the claimant’s impairments, singly

or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]

acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;

20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any impairment(s), has

the residual functional capacity (RFC) to perform their “past relevant work.” 20 C.F.R. §§

404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not

disabled. If the claimant cannot perform past relevant work, the burden shifts to the

Commissioner. In step five, the Commissioner must establish that the claimant can perform other

work. Yuckert, 482 U.S. at 141–42; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the

Commissioner meets their burden and proves that the claimant can perform other work that

exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566,

416.966.

THE ALJ’S DECISION

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

activity after her alleged onset date through the date last insured. Tr. 19. Next, at steps two and

three, the ALJ determined that Plaintiff has the following severe impairments: “a depressive

disorder, an anxiety disorder, attention deficit hyperactivity disorder (ADHD), and posttraumatic

stress disorder (PTSD).” Tr. 19. However, the ALJ determined that Plaintiff’s impairments did

not meet or medically equal the severity of a listed impairment. Tr. 21. At step four, the ALJ

concluded that through the DLI, Plaintiff had the residual functional capacity to perform medium

work as defined in 20 C.F.R. § 404.1567(c) with the following limitations:

She can occasionally climb ladders, ropes, or scaffolds. She can frequently climb

ramps and stairs, stoop, kneel, crouch, and crawl. She can tolerate occasional

exposure to extreme cold, vibration, and hazards such as unprotected heights and

moving mechanical machinery. She can understand, remember, and carry out

simple and detailed tasks that can be learned in 30 days or less. She can tolerate

occasional changes in a routine work setting. She can tolerate occasional interaction

with the general public, coworkers, and supervisors.

Tr. 22-23. Because of these limitations, the ALJ concluded that Plaintiff could not perform her

past relevant work. Tr. 28. But at step five, the ALJ found that there are jobs that exist in

significant numbers in the national economy that Plaintiff can perform, such as hand packager,

warehouse worker, and food service worker. Tr. 29. Thus, the ALJ concluded that Plaintiff is not

disabled. Tr. 30.

STANDARD OF REVIEW

A court may set aside the Commissioner’s denial of benefits only when the

Commissioner’s findings “are based on legal error or are not supported by substantial evidence

in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal

quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. (citation and internal quotation marks omitted). The court considers

the record as a whole, including both the evidence that supports and detracts from the

Commissioner’s decision. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where

the evidence is susceptible to more than one rational interpretation, the ALJ’s decision must be

affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also

Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can

support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s.”)

(internal quotation marks omitted).

DISCUSSION

Plaintiff argues that the ALJ erred in four ways: (1) improperly rejecting Plaintiff’s

subjective symptom testimony; (2) improperly analyzing the medical opinions of Bethany

Franklin-Comb, Ph.D., and Lawrence Maher, NP; (3) failing to explain his finding at step four

that Plaintiff could no longer perform her past relevant work; and (4) failing to include all of

Plaintiff’s limitations in the RFC. See generally Pl.’s Br., ECF No. 9. The Court disagrees.

///

I. Subjective Symptom Testimony

Plaintiff challenges the ALJ’s analysis of her subjective symptom testimony. The ALJ is

responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25,

2017). The ALJ engages in a two-step analysis for subjective symptom evaluation. Molina v.

Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (superseded on other grounds). First, the ALJ

determines whether there is “objective medical evidence of an underlying impairment which

could reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal

quotations omitted). Second, “if the claimant has presented such evidence, and there is no

evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order

to reject the claimant’s testimony about the severity of the symptoms.” Id. (internal quotations

omitted).

When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a

claimant’s testimony by simply reciting the medical evidence in support of his or her residual

functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).

Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and

must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195

(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons

proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ

did not arbitrarily discredit the claimant’s testimony.”).

Plaintiff last worked in 2017 or 2018 as a server in her mother’s café. Tr. 38. In that role,

she worked as a cashier, bussed tables, served food, and washed dishes. Tr. 38-39. But if Plaintiff

was having a rough day, Plaintiff would instead work in her mother’s flower shop delivering

flowers. Tr. 38-39. She delivered flowers a couple hours a week. Tr. 39.

Plaintiff has both physical and mental impairments that limit her ability to work. Plaintiff

testified that she has back issues that cause neuropathy in her leg that have worsened with time.

Tr. 45, 48. But her primary issues are related to her PTSD and depression. Tr. 45, 48. Plaintiff

was sexually assaulted when she was in the military, resulting in a child. Tr. 44. Plaintiff has

been resistant to pursuing therapy because she is afraid it will “get worse before it gets better”

and cause her to resent her child. Tr. 47. Plaintiff testified that her mental health has not

improved since her onset date in 2018. Tr. 47.

Her mental health issues make it difficult for her to focus. Tr. 46. She is triggered easily

by certain noises and smells. Tr. 45, 49. Plaintiff also testified that she has several panic attacks

each week where she cannot breathe, begins to hyperventilate, and “needs to run and go away”

but instead freezes and is trapped. Tr. 48-49. These last an hour. Tr. 49.

Plaintiff testified that she cannot work, even in a job with limited interaction with other

people. Tr. 48. She struggles to even shower regularly because of exhaustion and lack of

motivation. Tr. 48. She can only function for shorter periods of time at home. Tr. 46. She gets

overwhelmed easily by daily tasks like laundry and dishes. Tr. 46. Things are mentally and

physically exhausting, and she has no motivation to do them. Tr. 46. As a result, she does not do

a lot with her kids. Her husband is their primary caretaker. Tr. 46. They do not have any

“extracurricular” activities. Tr. 46.

The ALJ rejected Plaintiff’s subjective symptom testimony for three reasons. First, the

ALJ found that Plaintiff’s activities of daily living conflict with Plaintiff’s testimony. Second,

the ALJ noted Plaintiff’s limited course of treatment and improvement with medication. Finally,

the ALJ found that Plaintiff’s allegations are unsupported by and inconsistent with the record.

A. Activities of Daily Living

Contradiction with a claimant’s activities of daily living is a clear and convincing reason

for rejecting a claimant’s testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).

There are two grounds for using daily activities to form the basis of an adverse credibility

determination: (1) when activities meet the threshold for transferable work skills and (2) when

activities contradict a claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.

2007). However, “disability claimants should not be penalized for attempting to lead normal

lives in the face of their limitations,” Reddick, 157 F.3d at 722, and “the mere fact that a plaintiff

has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking

for exercise does not in any way detract from [their] credibility,” Webb v. Banhart, 433 F.3d 683,

688 (9th Cir. 2005) (citing Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). In order to

impact a claimant’s credibility, the activity has to be “inconsistent with claimant’s claimed

limitations.” Reddick, 157 F.3d at 722. The ALJ cannot mischaracterize statements and

documents in the record or take these out of context to reach his conclusion on the claimant’s

credibility. Id. at 722–23.

The ALJ discounted Plaintiff’s testimony because her claims of difficulties with daily

activities conflicted with her reports to providers regarding said activities. Tr. 26. Specifically,

the ALJ cites: (1) Plaintiff’s reports to “a provider in early 2021 that she was able to complete

household chores and help her son with schoolwork”; (2) Plaintiff’s ability to travel out of town

for the holidays in 2022; and (3) Plaintiff’s report to providers that she was home-schooling her

children. Tr. 26. Taken together, the ALJ concludes that these activities “suggest she is likely

capable of performing” tasks consistent with the RFC. Tr. 26.

While the limited medical record in this case is mixed, the Court finds that substantial

evidence supports the ALJ’s decision. Plaintiff does at times report difficulties with focus and

brain fog. Tr. 711 (fatigue and motivation issues), 304 (struggles with work due to poor focus),

452-43 (lack of motivation and difficulty focusing), 378 (reports of “brain fog”). But—as the

ALJ notes—she also reports no difficulty with activities of daily living in a few places in the

record. See Tr. 423 (notes ability to complete chores and help son with school), 388 (call to

provider seeking medication refill while they are on vacation for the holidays), 785 (notes she

home schools her children); see also Tr. 315-16 (attending full-time school, managing after

separating from her significant other, and painting between school and drop off), 399-400

(calling to request medications while on vacation road trip). Most notably, her reports of

assisting her children conflict with Plaintiff’s testimony that her husband is the primary

caretaker, that she does not do a lot with her kids, and that she struggles with motivation and

focus. Tr. 46. In the context of the record a whole, the Court finds that this evidence is such that

a reasonable mind could accept the ALJ’s conclusion.

B. Conservative Treatment and Improvement with Treatment

In evaluating a claimant’s testimony, the ALJ may rely on evidence of effective

treatment. See Orteza, 50 F.3d at 750 (“Factors that the adjudicator may consider when making

such credibility determinations include the . . . effectiveness or adverse side effects of any pain

medication.”); Tommasetti, 533 F.3d at 1040 (finding claimant’s testimony undermined by the

fact he responded well to conservative treatment). But where “[c]ycles of improvement and

debilitating symptoms are a common occurrence,” an ALJ errs by “pick[ing] out a few isolated

instances of improvement over a period of months or years and . . . treat[ing] them as a basis for

concluding a claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir.

2014).

The Ninth Circuit has also “long held that, in assessing a claimant’s credibility, the ALJ

may properly rely on ‘unexplained or inadequately explained failure to seek treatment or to

follow a prescribed course of treatment.’” Molina, 674 F.3d at 1113 (quoting Tomasetti, 533

F.3d at 1039). However, discounting a claimant’s credibility is not proper where “the claimant

has a good reason for not seeking more aggressive treatment.” Carmickle, 533 F.3d at 1162.

Further, in the mental health context, continuous care under a mental health professional and the

prescription of psychotropic medications do not constitute “conservative treatment.” Overton v.

Berryhill, No. 17CV25-BEN (BLM), 2017 WL 5159550, at *18 (S.D. Cal. Nov. 6, 2017). And

the Ninth Circuit has cautioned that individuals with mental health impairments should not be

penalized for exercising “‘poor judgment in seeking rehabilitation.’” See Regennitter v. Comm’r

Soc. Sec. Admin., 166 F.3d 1294, 1299–1300 (9th Cir.1999) (quoting Nguyen v. Chater, 100 F.3d

1462, 1465 (9th Cir. 1996)).

The ALJ cited Plaintiff’s routine and successful treatment of her conditions as a basis for

rejecting her subjective symptom testimony. Specifically, while recognizing that Plaintiff’s

reluctance to start therapy was understandable, the ALJ found “her testimony of uncontrolled

symptoms is not persuasive given the reports of relatively well managed depression and ADHD

symptoms with only routine treatment.” Tr. 25. In support of this finding, the ALJ cited the long

gaps in Plaintiff’s treatment history and reports to providers that her medications were working

well. Tr. 24-25.

The ALJ’s findings are clear, convincing, and supported by substantial evidence. During

the relevant period after Plaintiff’s Compensation & Pension3 (“C&P”) exams and before

Plaintiff’s DLI, Plaintiff only saw providers five times for her mental health. See Tr. 452, 450,

448, 440, 422. At one point, there was a year-long gap in her treatment. See Tr. 422, 440. At four

of these appointments, Plaintiff reported that her depression was stable or mildly improved with

Zoloft, and that her ADHD was stable or improving with her Adderall prescription. See Tr. 451,

448, 441, 423; see also Tr. 456 (postpartum visit after birth of child early in relevant period,

noting no depression). At appointments after Plaintiff’s DLI, Plaintiff similarly reported good

control of her ADHD and depression at most of her appointments. Tr. 387, 384, 395-96; see also

Tr. 785 (denying depression but experiencing daily anxiety). While Plaintiff gave sufficient

reasons for not pursuing therapy, the record—which shows limited appointments and effective

treatment of Plaintiff’s conditions—does not support Plaintiff’s allegations of debilitating mental

health symptoms.

C. Lack of Support from the Objective Medical Evidence

The ALJ is instructed to consider objective evidence in considering a claimant’s

symptom allegations. 20 C.F.R. § 416.929(c)(2) (“Objective medical evidence . . . is a useful

indicator to assist us in making reasonable conclusions about the intensity and persistence of

your symptoms . . . .”). Inconsistency between Plaintiff’s testimony and the objective medical

record is a valid reason to discount Plaintiff’s testimony. See Connett v. Barnhart, 340 F.3d 871,

874 (9th Cir. 2003) (affirming the ALJ’s credibility finding where the plaintiff’s testimony of

weight fluctuation was inconsistent with the medical record). And under certain circumstances,

3 C&P exam is a medical examination conducted by the Department of Veterans Affairs to help

determine the severity of a veteran’s disability and whether a veteran’s disability is connected to

their military service.

the ALJ can discount claimant testimony when that testimony is not supported by the objective

medical record. See Batson v. Comm’r, 359 F.3d 1190, 1196 (9th Cir. 2007) (“‘Graphic and

expansive’” pain symptoms could not be explained on objective, physical basis by claimant’s

treating physician); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (finding the ALJ could

consider mild findings on MRIs and X-rays in discounting the plaintiff’s testimony as to her

back pain). This may not, however, be the ALJ’s sole reason for discounting a claimant’s

testimony: “[T]he Commissioner may not discredit the claimant’s testimony as to the severity of

symptoms merely because they are unsupported by objective medical evidence. Reddick, 157

F.3d at 722; see also 20 CFR §§ 404.1529(c)(2), 416.929(c)(2).

The ALJ found that Plaintiff’s reports of mental health symptoms were not supported by

the objective medical evidence. Tr. 25. The ALJ specifically cited Plaintiff’s limited reports of

panic attacks and PTSD symptoms as well as providers’ observations of normal mood, behavior,

and thought content at appointments. Tr. 25.

The ALJ’s decision is supported by substantial evidence in the record. As noted above,

the record largely reflects reports of manageable depression, PTSD symptoms, ADHD, and

anxiety. Tr. 315, 456, 448, 441, 423, 395-96, 387, 785. Indeed, Plaintiff reported feeling “good”

and “doing well” to providers. Tr. 448 (mild improvement in depression symptoms), 423

(“overall good and managed”). The ALJ therefore did not err in rejecting Plaintiff’s subjective

symptom testimony.

II. Medical Opinion Evidence

Plaintiff argues that the ALJ erred in his treatment of the opinions of two medical

providers: Bethany Franklin-Comb, PhD, and Lawrence Maher, NP. For claims filed on or after

March 27, 2017, ALJs are no longer required to give deference to any medical opinion, including

treating source opinions. Rules Regarding the Evaluation of Medical Evidence, 2017 WL

168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. Instead, the

agency considers several factors. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). These are:

supportability, consistency, relationship to the claimant, specialization, and “other factors.” 20

C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The “most important” factors in the

evaluation process are supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2),

416.920c(b)(2).

Under this framework, the ALJ must “articulate . . . how persuasive [they] find all of the

medical opinions” from each doctor or other source. 20 C.F.R. §§ 404.1520c(b), 416.920c(b)(2).

In doing so, the ALJ is required to explain how supportability and consistency were considered

and may explain how the other factors were considered. 20 C.F.R §§ 404.1520c(b)(2),

416.920c(b)(2). When two or more medical opinions or prior administrative findings “about the

same issue are both equally well-supported . . . and consistent with the record . . . but are not

exactly the same,” the ALJ is required to explain how the other factors were considered. 20

C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). “Even under the new regulations, an ALJ cannot

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

an explanation supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th

Cir. 2022).

A. Bethany Franklin-Comb, Ph.D

Dr. Franklin-Comb conducted Plaintiff’s C&P examination of Plaintiff’s mental health

problems in September 2018. In her exam, Dr. Franklin-Comb diagnosed Plaintiff with PTSD

and moderate major depressive disorder. Tr. 302. She concluded that Plaintiff would have

occupational and social impairments—with reduced reliability and productivity—due to her

diagnoses. Tr. 303. Dr. Franklin-Comb also noted that Plaintiff struggles with work due to poor

focus and has a hard time with people. Tr. 304. She described Plaintiff’s reports of nightmares,

hypervigilance, and becoming “absorbed” by past trauma, and she noted Plaintiff’s 2017

hospitalization due to suicidal ideation. Tr. 304. Dr. Franklin-Comb concluded that Plaintiff

meets the DSM-5 criteria for PTSD and that Plaintiff’s conditions were connected to the sexual

assault that occurred during her time in the military. Tr. 305.

In evaluating Dr. Franklin-Comb’s C&P report, the ALJ concluded first that her

assessment “of [Plaintiff’s] marked symptoms is not an opinion on the claimant’s mental work

abilities or limitations, and as such it does not meet the requirements to be considered a medical

opinion.” Tr. 28. In the alternative, the ALJ discounted Dr. Franklin-Comb’s report of marked

limitations in mental functioning as (1) unsupported by the provider’s own observations of

Plaintiff and reliant on Plaintiff’s subjective reports and (2) inconsistent with Plaintiff’s routine

course of treatment, reports of improved symptoms, and limited medical evidence. Tr. 28.

Even assuming that the ALJ erred in concluding that Dr. Franklin-Comb’s C&P

examination does not constitute a medical opinion, the ALJ did not err in discounting her

opinion. As to supportability, substantial evidence supports the ALJ’s conclusion. Specifically,

Dr. Franklin-Comb’s own observations of Plaintiff at the exam do not fully support her

conclusions as to Plaintiff’s marked symptoms. Tr. 306 (noting only mildly restricted affect and

depressed mood). As to inconsistency, Dr. Franklin-Comb’s conclusions as to Plaintiff’s

significant symptoms of depression and PTSD are not supported by the medical record as a

whole, as noted above. See supra Part I(b)-(c). Accordingly, the ALJ did not err in discounting

Dr. Franklin-Comb’s opinion.

///

B. Lawrence Maher, NP

Nurse Practitioner Maher conducted Plaintiff’s C&P examination for her back, rib, and

knee impairments in September 2018. Tr. 283. In assessing Plaintiff’s back condition, he noted

slightly limited range of motion but no evidence of pain with weight bearing and normal gait. Tr.

284-85. He also opined that Plaintiff’s limited range of motion does not contribute to functional

loss. Tr. 284. Plaintiff’s physical exam was largely normal. Tr. 284-86. As to Plaintiff’s left

knee, he concluded that her range of motion was normal for Plaintiff’s body habitus. Tr. 292. He

also noted pain on exam and with weight bearing, causing some functional loss. Tr. 292. But

there was no evidence of joint instability. Tr. 297. As to Plaintiff’s rib condition, NP Maher

noted that Plaintiff has periodic pain in her left ribs—mostly when she coughs or gets a cold—

but found that it would not limit her function. Tr. 300.

Ultimately, NP Maher opined that Plaintiff would be limited to intermittent weight

bearing; intermittent standing for more than thirty minutes at a time; limited to moderate weight

in lifting, pushing, pulling and carrying on a non-repetitive basis; non-repetitive bending; and

minimal non-repetitive squats. Tr. 287, 297. NP Maher attributed these limitations to Plaintiff’s

knee and back pain. Tr. 284, 287.

As to all three conditions, NP Maher noted that there was limited medical evidence

regarding Plaintiff’s back, knee, or rib issues. Specifically, he notes that none of these conditions

were appreciated in the 2017 or 2018 medical records preceding the C&P exam and that imaging

was negative. Tr. 283, 287, 291, 297, 298. He also noted Plaintiff’s self-reports of her back,

knee, and rib limitations in his report. Tr. 283, 291, 298.

The ALJ found persuasive NP Maher’s opinion that Plaintiff’s spinal and rib disorders

had no functional impact. Tr. 27. He also concluded, however, that NP Maher’s opinion that

Plaintiff’s knee condition limited her ability to squat and bear weight was not persuasive. Tr. 27.

Specifically, the ALJ noted that Plaintiff had normal strength, no difficulty with gait, and no pain

with weight bearing despite a limited range of motion in her back and knee. Tr. 27. The ALJ

concluded that the decreased range of motion—in light of Plaintiff’s otherwise normal exam—

was insufficient to support limiting Plaintiff’s ability to squat and bear weight. Tr. 27. The ALJ

also noted that the limitations are inconsistent with the evidence in the record, which shows no

treatment for these conditions, limited reports of pain to providers, and observations of normal

gait. Tr. 27-28

The ALJ did not err in his assessment of NP Maher’s opinion. Turning first to

supportability, the ALJ correctly noted the largely normal exam results—particularly limited

evidence of pain in Plaintiff’s back—in the C&P examination that do not support NP Maher’s

opinion. See Tr. 284-85, 297. As to consistency, the ALJ also noted the limited evidence in the

record, which shows no treatment for Plaintiff’s knee, back, or rib pain. Tr. 27. Indeed, NP

Maher noted no evidence in the record immediately preceding the C&P, limited evidence from

the time of the alleged injuries causing Plaintiff’s pain, and normal imaging of Plaintiff’s back,

knee, and ribs. Tr. 283, 287, 291, 297, 298. Accordingly, the ALJ did not err in finding NP

Maher’s opinion not persuasive.

III. RFC

Plaintiff argues that the ALJ’s RFC is inadequate because it did not account for all

relevant evidence. Pl.’s Br. 22. Specifically, Plaintiff identifies the ALJ’s failure to take into

account Plaintiff’s non-severe headaches and migraines as well as chronic pain.4 Id. at 23. The

4 Plaintiff also argues that the RFC is unsupported because the ALJ erred in his assessment of

Plaintiff’s subjective symptom testimony and the medical opinion evidence. The Court, however,

has concluded that the ALJ did not err in either regard. See supra Part I-II. The ALJ, therefore,

residual functional capacity (RFC) is the most a person can do, despite his physical or mental

limitations. 20 C.F.R. §§ 404.1545, 416.945. In formulating an RFC, the ALJ must consider all

medically determinable impairments, including those that are not “severe,” and evaluate “all of

the relevant medical and other evidence, including the claimant’s testimony.” Id.; SSR 96-8p.

The ALJ did not attribute any limitations to Plaintiff’s non-severe headaches, migraines,

and chronic pain. Turning first to Plaintiff’s migraines, the ALJ noted that there is almost no

evidence in the record of Plaintiff’s migraines and headaches except for a September 2018 C&P

exam and one chart note from 2024. Tr. 20. As to Plaintiff’s chronic pain—including pain from

Plaintiff’s spine disorder, rib condition, and knee—the ALJ similarly noted that there were few

appointments for these conditions beyond the C&P exams. Tr. 19-20.

The Court finds that the ALJ did not err in not incorporating any additional limitations

into Plaintiff’s RFC because of these non-severe impairments. Consistent with the ALJ’s

findings, the record shows few—if any—appointments during the relevant period for any of

these conditions beyond the C&P examinations. See Tr. 275 (neuro C&P exam), 282 (C&P exam

for back and knee pain), 784-85 (July 2024 appointment noting headaches and arthralgias and

myalgias) And in those examinations, the relevant providers conclude these impairments cause

few, if any, limitations on Plaintiff’s work ability. Tr. 276 (no reports of impairment of memory,

attention, concentration, or executive function in neuro C&P exam), 279 (concluding headaches

do not impact ability to work and noting panic attacks caused her to cease work). Moreover, the

ALJ appropriately rejected Plaintiff’s symptom testimony and the opinion of NP Maher, who

evaluated Plaintiff’s physical impairments. See supra Parts I-II. Accordingly, the Court finds that

the ALJ did not err in formulating the RFC.

did not err in failing to consider the aforementioned evidence in formulating the RFC.

IV. Step Four

Plaintiff argues that the ALJ did not properly explain his finding that Plaintiff could not

return to her past relevant work. Pl.’s Br. 26. At step four, the ALJ determines whether the

claimant can perform past relevant work given his RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e). If

the claimant can perform past relevant work as it was actually performed or as it is generally

performed in the national economy, the claimant is not-disabled within the meaning of the Act,

thus concluding the sequential evaluation process. See, e.g., Tommasetti, 533 F.3d at 1042–43;

SSR 82-61. The ALJ may use two different sources of information to define how a claimant’s

past relevant work is actually performed: “a properly completed vocational report . . . and the

claimant’s own testimony.” Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (citing SSR

82-61, SSR 82-41). “Although the burden of proof lies with the claimant at step four, the ALJ

still has a duty to make the requisite factual findings to support his conclusion.” Id. (citing SSR

82-62).5

The ALJ concluded Plaintiff could not perform any of her past relevant work as a server.

Tr. 28. At the hearing, the ALJ consulted a vocational expert (“VE”). See Tr. 38. After asking

Plaintiff questions about her job as a server, the VE was able to classify the job as DOT code

311.477-030. Tr. 39. The ALJ then presented the VE with a hypothetical person with Plaintiff’s

RFC and concluded—without waiting for a response from the VE—that Plaintiff’s “past work is

out.” Tr. 40. The ALJ then asked the VE whether there were other jobs that such an individual

could perform, and the VE identified “hand packager,” “warehouse worker,” and “food service

5 SSR 82-61 and 82-62 were rescinded and replaced by SSR 24-2p on June 22, 2024, but SSR

24-2p was only applied to new applications as of that date. See SSR 24-2p n.1. Because Plaintiff

applied in 2023, the new SSR is inapplicable here.

worker.” Tr. 40-41. All three are unskilled, medium jobs with a specific vocational preparation

(“SVP”) level of 2. Id.

Even assuming the ALJ erred in his abbreviated discussion of Plaintiff’s past relevant

work, Plaintiff has not explained how the ALJ’s decision—in her favor—was harmful. Plaintiff

appears to suggest that Plaintiff’s past relevant work and one of the jobs identified by the ALJ at

step five are so similar that the lack of an explanation from the ALJ regarding Plaintiff’s past

relevant work renders his decision unsupported by substantial evidence.6 See Pl.’s Br. 27-29.

But, as Plaintiff admits, the jobs are different in one important way: the “server” job is a semi-

skilled position with an SVP level of 3, while the “food service worker” job is an unskilled

position with an SVP level of 2. Compare DOT 311.477-030 (SVP level 3, defined as “[o]ver 1

month up to and including 3 months”) with DOT 314.677.014 (SVP level 2, defined as

“[a]nything beyond short demonstration up to and including 1 month”). In light of Plaintiff’s

RFC limitation to unskilled work that can be learned in 30 days or less, Plaintiff cannot perform

her position as a server—which requires one to three months to learn—but can perform the food

service worker job—which takes less than one month to learn. See id. The Court, therefore, finds

that any error in assessing Plaintiff’s past relevant work was harmless.

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6 The Court also notes that Plaintiff does not otherwise appear to challenge the other two

positions identified by the ALJ—“hand packager” and “food service worker”—that exist in

significant numbers in the national economy. Tr. 40 (VE testimony that there are 69,400 hand

packager jobs and 153,000 warehouse worker jobs nationally).

CONCLUSION

Based on the foregoing, the Commissioner’s decision is AFFIRMED.

IT IS SO ORDERED.

DATED:___A_u_g_u_s_t_ 2__0_, _2_0_2_6_______.

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MARCO A. HERNÁNDEZ

United States Senior District Judge