ALJ’s RFC 11 finding limiting claimant to “simple, routine, repetitive” work effectively 12 “translated” the medical opinions, including assessments of moderate limitations 13 related to pace, attention, and concentration
How later courts described this case
- ALJ’s RFC 11 finding limiting claimant to “simple, routine, repetitive” work effectively 12 “translated” the medical opinions, including assessments of moderate limitations 13 related to pace, attention, and concentration
- ALJ error harmless if (1) inconsequential to 13 | the ultimate nondisability determination; or (2) ALJ’s path may reasonably be 14 || discerned despite the error
Written by the judges who cited it.
The opinion
Case 5:21-cv-02083-JC Document 20 Filed 01/04/23 Page 1 of 9 Page ID #:827
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JAMES D.C.,1 Case No. 5:21-cv-02083-JC
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Plaintiff,
12 MEMORANDUM OPINION
v.
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[DOCKET NOS. 16, 19]
14 KILOLO KIJAKAZI, Acting
Commissioner of Social Security
15 Administration,
16 Defendant.
17 I. SUMMARY
18 On December 14, 2021, plaintiff filed a Complaint seeking review of the
19 Commissioner of Social Security’s denial of his application for benefits. The
20 parties have consented to proceed before the undersigned United States Magistrate
21 Judge.
22 This matter is before the Court on the parties’ cross-motions for summary
23 judgment (respectively, “Plaintiff’s Motion” and “Defendant’s Motion”). The
24 Court has taken the parties’ arguments under submission without oral argument.
25 See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order ¶ 5.
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27 1Plaintiff’s name is partially redacted to protect plaintiff’s privacy in compliance with
Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on
28 Court Administration and Case Management of the Judicial Conference of the United States.
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Case 5:21-cv-02083-JC Document 20 Filed 01/04/23 Page 2 of 9 Page ID #:828
1 Based on the record as a whole and the applicable law, the decision of the
2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge
3 (“ALJ”) are supported by substantial evidence and are free from material error.
4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE
5 DECISION
6 On August 14, 2018, plaintiff protectively filed an application for
7 Supplemental Security Income, alleging disability beginning April 19, 1994 (i.e., at
8 birth), due to bipolar disorder and anxiety disorder. (See Administrative Record
9 (“AR”) 126, 169).
10 An ALJ subsequently examined the medical record and, on September 24,
11 2020, heard testimony from a vocational expert and plaintiff (who was represented
12 by counsel). (AR 28-45). On November 17, 2020, the ALJ determined that
13 plaintiff has not been disabled since the date the application was filed. (AR 15-24).
14 Specifically, the ALJ found: (1) plaintiff has the following severe impairments:
15 intellectual disability and bipolar disorder (AR 17); (2) plaintiff’s impairments,
16 considered individually or in combination, do not meet or medically equal a listed
17 impairment (AR 18); (3) plaintiff retains the residual functional capacity (or
18 “RFC”)2 to perform a full range of work at all exertional levels but is limited to
19 performing only simple, routine, and repetitive tasks with only occasional
20 coworker contact and no public contact (AR 20); (4) plaintiff has no past relevant
21 work (AR 22); (5) there are jobs that exist in significant numbers in the national
22 economy that plaintiff could perform, specifically cleaner, store laborer, and
23 industrial cleaner (AR 23-24); and (6) plaintiff’s statements regarding the intensity,
24 persistence, and limiting effects of subjective symptoms were inconsistent with the
25 medical evidence and other evidence in the record (AR 21-22).
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2Residual functional capacity is what a claimant can still do despite existing exertional
28 and nonexertional limitations. See 20 C.F.R. § 416.945(a)(1).
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Case 5:21-cv-02083-JC Document 20 Filed 01/04/23 Page 3of9 Page ID #:829
1 On October 21, 2021, the Appeals Council denied plaintiff's application for
2 || review of the ALJ’s decision. (AR 1-3).
3] 1. APPLICABLE LEGAL STANDARDS
4 A. Administrative Evaluation of Disability Claims
5 To qualify for disability benefits, a claimant must show that he is unable “to
6 || engage in any substantial gainful activity by reason of any medically determinable
7 || physical or mental impairment which can be expected to result in death or which
8 || has lasted or can be expected to last for a continuous period of not less than 12
9 || months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42
10 || U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded by
11 || regulation on other grounds; 20 C.F.R. § 416.905(a). To be considered disabled, a
12 || claimant must have an impairment of such severity that he is incapable of
13 || performing work the claimant previously performed (“past relevant work’) as well
14 || as any other “work which exists in the national economy.” Tackett v. Apfel, 180
15 | F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).
16 To assess whether a claimant is disabled, an ALJ is required to use the five-
17 || step sequential evaluation process set forth in Social Security regulations. See
18 || Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)
19 || (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520,
20 || 416.920). The claimant has the burden of proof at steps one through four — i.e.,
21 || determination of whether the claimant was engaging in substantial gainful activity
22 || (step 1), has a sufficiently severe impairment (step 2), has an impairment or
23 || combination of impairments that meets or medically equals one of the conditions
24 | listed in 20 C.F.R. Part 404, Subpart P, Appendix | (“Listings”) (step 3), and
25 || retains the residual functional capacity to perform past relevant work (step 4).
26 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The
27 || Commissioner has the burden of proof at step five — i.e., establishing that the
28 || claimant could perform other work in the national economy. Id.
Case 5:21-cv-02083-JC Document 20 Filed 01/04/23 Page 4of9 Page ID #:830
1 B. Federal Court Review of Social Security Disability Decisions
2 A federal court may set aside a denial of benefits only when the
3 || Commissioner’s “final decision” was “based on legal error or not supported by
4 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
5 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard
6 || of review in disability cases is “highly deferential.” Rounds v. Comm’r of Soc.
7 || Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks
8 || omitted). Thus, an ALJ’s decision must be upheld if the evidence could reasonably
9 || support either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75
10 || (citations omitted). Even when an ALJ’s decision contains error, it must be
11 || affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. Admin.,
12 | 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to
13 | the ultimate nondisability determination; or (2) ALJ’s path may reasonably be
14 || discerned despite the error) (citation and quotation marks omitted).
15 Substantial evidence is “such relevant evidence as a reasonable mind might
16 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining
17 | “substantial evidence” as “more than a mere scintilla, but less than a
18 || preponderance’) (citation and quotation marks omitted). When determining
19 || whether substantial evidence supports an ALJ’s finding, a court “must consider the
20 || entire record as a whole, weighing both the evidence that supports and the evidence
21 || that detracts from the Commissioner’s conclusion[.]” Garrison v. Colvin, 759 F.3d
22 || 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).
23 Federal courts review only the reasoning the ALJ provided, and may not
24 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”
25 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need
26 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s
27 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
28 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).
Case 5:21-cv-02083-JC Document 20 Filed 01/04/23 Page5of9 Page ID #:831
1 A reviewing court may not conclude that an error was harmless based on
2 || independent findings gleaned from the administrative record. Brown-Hunter, 806
3 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently
4 || conclude that an error was harmless, a remand for additional investigation or
5 || explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
6 || (9th Cir. 2015) (citations omitted).
7] 1IV. DISCUSSION
8 Plaintiff claims that the ALJ erred by implicitly rejecting limitations
9 || assessed by consultative examiner Dr. Anthony Benigno, Psy.D. (See Plaintiff's
10 || Motion at 5-9). For the reasons stated below, the Court concludes that a reversal or
11 | remand is not warranted.
12 A. Applicable Law
13 For claims filed on or after March 27, 2017, such as plaintiffs claims here,
14 || new regulations govern the evaluation of medical opinion evidence. Under these
15 | regulations, ALJs no longer “weigh” medical opinions; rather, ALJs determine
16 || which opinions are the most “persuasive” by focusing on several factors:
17 || (1) supportability; (2) consistency; (3) relationship with the claimant (including the
18 | length of treatment, frequency of examinations, purpose of treatment, extent of
19 || treatment, whether the medical source examined the claimant); (4) the medical
20 || source’s specialty; and (5) “other” factors. See 20 C.F.R. § 416.920c(c)(1)-(5).
21 Under the new regulations, treating and examining sources no longer receive
22 || special deference, and the ALJ no longer needs to provide “specific and legitimate”
23 || reasons to reject opinions from such sources. See 20 C.F.R. § 416.920c; Woods v.
24 || Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Even so, in evaluating medical
25 || opinion evidence “under the new regulations, an ALJ cannot reject an examining
26 || or treating doctor’s opinion as unsupported or inconsistent without providing an
27 || explanation supported by substantial evidence.” Woods, 32 F.4th at 792. Finally,
28 || the new regulations command that an opinion that a claimant is disabled or not able
Case 5:21-cv-02083-JC Document 20 Filed 01/04/23 Page 6 of 9 Page ID #:832
1 to work is “inherently neither valuable nor persuasive,” and an ALJ need not
2 provide any analysis about how such evidence is considered. See 20 C.F.R.
3 § 404.1520b(c)(3).
4 B. Pertinent Facts
5 Dr. Benigno performed a consultative psychological examination of plaintiff
6 on March 27, 2017. (AR 216-20). Dr. Benigno noted that plaintiff was
7 not taking any psychotropic medication and had no past psychiatric
8 hospitalizations or outpatient care. (AR 217). Plaintiff was alert, attentive, and
9 cooperative during the exam. (AR 218). He was oriented as to person, time, and
10 place, able to sustain concentration without distraction, and his thoughts were
11 coherent and logical with appropriate content. (AR 218). Plaintiff’s mood was
12 euthymic, and no symptoms of depression and anxiety were reported. (AR 218).
13 Plaintiff’s memory was moderately impaired, but his recent and remote memory
14 were intact, and he had adequate judgment and insight. (AR 218). Dr. Benigno
15 noted that plaintiff had extremely low intellectual functioning, and his fund of
16 knowledge was poor. (AR 218-19). Plaintiff stated that he got along fairly well
17 with friends and family, and he reported that he could independently use a
18 telephone, shop, and make meals, but he needed help completing household chores
19 and laundry. (AR 217). Dr. Benigno diagnosed mild intellectual disability and
20 provided the following assessment of plaintiff’s functional limitations:
21 [Plaintiff] would be able to understand, remember and carry out short,
22 simplistic instructions with mild difficulty. He also would have
23 moderate difficulty to understand, remember and carry out detailed
24 and complex instructions. He would have mild difficulty to make
25 simplistic work-related decisions without special supervision. He
26 would have moderate difficulty to comply with job rules such as
27 safety and attendance. He would have no difficulty to respond to
28 change in a normal workplace setting. He would have moderate
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1 difficulty to maintain persistence and pace in a normal workplace
2 setting. [¶] . . . . He presents with mild difficulty to interact
3 appropriately with supervisors, coworkers and peers on a consistent
4 basis.
5 (AR 220).
6 The ALJ found Dr. Benigno’s opinion “persuasive” because it was
7 consistent with the doctor’s own physical examination of plaintiff and was also
8 supported by the objective medical findings in the record. (AR 22). The only
9 other medical opinions in the record were those of the non-examining agency
10 consultants (i.e., the “prior administrative medical findings”),3 which the ALJ
11 found “not persuasive” because they did not take into account the subsequent
12 medical evidence and hearing testimony. (AR 22; see AR 48-52, 57-61).
13 Considering the record overall, as noted above, the ALJ concluded that plaintiff
14 was limited to performing “simple, routine and repetitive tasks with occasional
15 coworker contact and no public contact.” (AR 20).
16 C. Analysis
17 Plaintiff’s sole contention is that the ALJ erred by neglecting to include in
18 the RFC Dr. Benigno’s opinion that plaintiff “would have moderate difficulty to
19 comply with job rules such as safety and attendance.” (Plaintiff’s Motion at 6-9;
20 see AR 220). However, even though the ALJ found Dr. Benigno’s opinion
21 generally persuasive and did not expressly reject any portion of it, the ALJ was not
22 required to adopt it verbatim in the RFC – particularly where, as here, the medical
23 opinion at issue does not provide a clear functional restriction. Cf. Fergerson v.
24 Berryhill, 2017 WL 5054690, at *4 (C.D. Cal. Nov. 1, 2017) (“In formulating the
25 RFC, an ALJ is not required to make up restrictions that are not actually articulated
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27 3The new regulations use the term “prior administrative medical findings” to refer
to findings by the state agency medical and psychological consultants who review claims at the
28 initial and reconsideration levels of the administrative process. 20 C.F.R. § 416.913(a)(5).
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1 by any medical source . . . .”). Instead, the ALJ may reasonably translate such
2 opinions into concrete limitations in the RFC, which must set forth the claimant’s
3 ability to perform work “on a regular and continuing basis.” See 20 C.F.R.
4 § 416.945(c) (“When we assess your mental abilities, we . . . determine your
5 residual functional capacity for work activity on a regular and continuing basis”);
6 see also 20 C.F.R. § 416.927(d)(2) (Social Security Commissioner has final
7 responsibility for determining claimant’s RFC); Social Security Ruling 96-5p,
8 1996 WL 374183, at *2 (Social Security regulations provide that final
9 responsibility for determining RFC is “reserved to the Commissioner”);
10 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) (ALJ’s RFC
11 finding limiting claimant to “simple, routine, repetitive” work effectively
12 “translated” the medical opinions, including assessments of moderate limitations
13 related to pace, attention, and concentration).
14 The ALJ did so here. Notably, Dr. Benigno did not state that plaintiff would
15 miss a certain number of days, and plaintiff does not point to any evidence in the
16 record suggesting that he would have any significant difficulty in maintaining
17 adequate safety and attendance. To the contrary, as the ALJ noted, plaintiff’s
18 mental health records reflect mild findings overall with borderline intellectual
19 functioning, and plaintiff was doing well on medications. (See AR 21-22, 225,
20 238-239, 241-43, 547, 548-50, 624, 703-06, 713-16). There is nothing in Dr.
21 Benigno’s assessment or the record overall to suggest that plaintiff’s “moderate”
22 difficulty in complying with attendance or safety rules would prevent him from
23 working on a “regular and continuing basis,” within the limitations assessed in the
24 RFC. See Fergerson, 2017 WL 5054690, at *4 (requirement that RFC state
25 claimant’s ability to perform “work activity on a regular and continuing basis” is
26 “not inconsistent with . . . a ‘moderate’ level of absenteeism”).
27 Accordingly, the ALJ did not err by neglecting to expressly include or reject
28 Dr. Benigno’s opinion that plaintiff “would have moderate difficulty to comply
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1 || with job rules such as safety and attendance” (AR 220). See id. at *3-4 (ALJ was
2 || not required to expressly incorporate or explain rejection of doctor’s general
3 || assessment of moderate limitation in attendance because opinion did not specify
4 || number of days claimant would be absent, and moderate attendance limitation was
5 || consistent with ability to work on “regular and continuing basis”); Sandra S. v.
6 || Kijakazi, 2022 WL 3355803, at *8 (S.D. Cal. Aug. 12, 2022) (same), report and
7 || recommendation adopted, 2022 WL 4180973 (S.D. Cal. Sept. 12, 2022); Turner v.
8 | Colvin, 2015 WL 5708476, at *3-4 (C.D. Cal. Sept. 29, 2015) (same), aff'd, 693 F.
9 || App’x 722 (9th Cir. 2017). Plaintiff therefore fails to identify any material error in
10 || the ALJ’s decision, which is reasonable and supported by substantial evidence in
11 | the record.
12] V. CONCLUSION
13 For the foregoing reasons, the decision of the Commissioner of Social
14 || Security is AFFIRMED.
15 LET JUDGMENT BE ENTERED ACCORDINGLY.
16 | DATED: January 4, 2023
17 /s/
18 Honorable Jacqueline Chooljian
19 UNITED STATES MAGISTRATE JUDGE
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