(SS) Tara Fae Alexander v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 TARA FAE ALEXANDER, 10 Case No. 1:19-cv-01208-SKO Plaintiff, 11 v. ORDER ON PLAINTIFF’S SOCIAL 12 SECURITY COMPLAINT ANDREW SAUL, 13 Commissioner of Social Security, 14 Defendant. (Doc. 1) 15 16 _____________________________________/ 17 18 19 I. INTRODUCTION 20 On September 9, 2019, Plaintiff Tara Fae Alexander (“Plaintiff”) filed a complaint under 42 21 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of 22 Social Security (the “Commissioner” or “Defendant”) denying her applications for Disability 23 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security 24 Act (the “Act”). (Doc. 1.) The matter is currently before the Court on the parties’ briefs, which 25 were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate 26 Judge.1 27 28 1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 6, 8.) 1 II. BACKGROUND 2 On January 11, 2017, Plaintiff protectively filed applications for DIB and SSI payments, 3 alleging she became disabled on January 1, 2012, due to scoliosis, depression, “high arches on feet,” 4 and being a “[s]low learner.” (Administrative Record (“AR”) 16, 95, 96, 225.) Plaintiff was born 5 on December 1, 1977, and was 34 years old as of the alleged onset date. (AR 231.) Plaintiff 6 graduated high school, has past work experience as a fast-food worker, and can communicate in 7 English. (AR 26, 226.) 8 A. Relevant Medical Evidence2 9 1. Arundati Halappa, M.D. 10 On January 10, 2017, Plaintiff presented to Dr. Halappa to establish care after she recently 11 received health insurance. (AR 326.) Upon examination, Plaintiff was found to have tenderness in 12 her spine and moderate pain with motion. (AR 327.) Dr. Halappa assessed Plaintiff with chronic 13 bilateral thoracic back pain, other chronic pain, and intellectual disability. (AR 328.) Plaintiff was 14 prescribed baclofen and naproxen for her pain. (AR 328.) Later during her course of her care, 15 Plaintiff was also prescribed hydrocodone/acetaminophen and ibuprofen. (See AR 372.) 16 On January 30, 2017, Plaintiff appeared for an appointment stating she wanted to apply for 17 permanent disability due to her back pain and problems. (AR 333.) In his treatment notes, Dr. 18 Halappa made the following notation: “us works form filled.[ ]physically and mentally disabled for 19 full time work.” (AR 334.) 20 On November 7, 2017, Plaintiff presented for anxiety after a woman at her apartment 21 complex threatened her life. (AR 407.) Dr. Halappa noted that Plaintiff was anxious and fearful, 22 but also oriented to the situation with appropriate mood and affect. (AR 409.) Dr. Halappa 23 prescribed Lexapro for Plaintiff and advised her to follow up with counseling. (AR 409.) 24 On May 22, 2018, Plaintiff had an appointment for her chest x-ray results. (AR 442.) Dr. 25 Halappa noted that Plaintiff’s back condition was stable, and he did not see her condition as 26 27 28 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 disabling. (AR 444.) Dr. Halappa further noted that Plaintiff was “persistently asking for disability 2 for her back condition,” but he declined to fill out the paperwork for disability. (AR 444.) 3 On May 29, 2018, Dr. Halappa filled out a questionnaire on Plaintiff’s behalf. (AR 402.) 4 Dr. Halappa stated that Plaintiff had scoliosis and her primary impairments were mid- and lower- 5 back pain and chronic pain. (AR 402.) Dr. Halappa opined that the medical problems for which he 6 treated Plaintiff did not preclude her from performing any full-time work at any exertional level. 7 (AR 402.) Dr. Halappa also assessed Plaintiff’s physical residual functional capacity (“RFC”)3: 8 Plaintiff could lift no more than 25 pounds for about two to three hours in an eight-hour day, sit for 9 four hours at one time without rest or support, stand and/or walk for four hours at one time without 10 rest or support, sit for six hours over an eight-hour workday, and stand and/or walk for six hours 11 over an eight-hour workday. (AR 402.) Dr. Halappa further opined that “due to chronic back pain, 12 [Plaintiff] needs breaks to rest her back.” (AR 402.) 13 2. Araceli Vigil, LCSW 14 On January 30, 2017, Plaintiff presented to Vigil, a licensed clinical social worker 15 (“LCSW”), for an intake session. (AR 336.) LCSW Vigil recorded that Plaintiff presented with 16 symptoms of depression and anxiety. (AR 336.) On examination, Plaintiff was found to have an 17 anxious mood with preoccupations and ruminations; LCSW Vigil estimated that Plaintiff had 18 average intelligence and found that her insight and judgment were within normal limits. (AR 337– 19 38.) Plaintiff was engaged and cooperative during the session. (AR 337.) 20 On March 16, 2017, Plaintiff presented with an anxious mood and congruent affect. (AR 21 354.) Plaintiff was again engaged and receptive during the session, and reported that deep breathing 22 worked well for her anxiety and restlessness at bedtime. (AR 354.) Plaintiff also stated she could 23 see visual grounding techniques helping her when she was out in public. (AR 354.) 24 25 3 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work 26 setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. Social Security Ruling (“SSR”) 96-8p. The RFC assessment considers only functional limitations and restrictions that result 27 from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay 28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable 1 On March 30, 2017, Plaintiff presented with euthymic mood and congruent affect. (AR 2 362.) Plaintiff reported some improvement, but continued to struggle with depression and anxiety 3 symptoms. (AR 362.) 4 On March 5, 2018, Plaintiff resumed therapy. (AR 415.) Plaintiff stated her anxiety and 5 depression symptoms had been exacerbated due to recent news that she was at risk of losing her 6 home and the death of her grandfather. (AR 415.) During the intake session, LCSW Vigil observed 7 that Plaintiff’s mood was depressed and anxious, and Plaintiff had depressive preoccupations and 8 ruminations. (AR 417.) Plaintiff had logical thought process, average intelligence, and cognition, 9 insight, and judgment within normal limits. (AR 417.) 10 On April 17, 2018, Plaintiff appeared for the second part of her intake session. (AR 429.) 11 Plaintiff reported mild improvement with Lexapro, but she still experienced residual symptoms. 12 (AR 433.) Plaintiff told LCSW Vigil that she was no longer interested in a referral to a psychiatrist. 13 (AR 429.) Plaintiff requested a letter of attendance for the session, and Plaintiff’s fiancé Leo 14 Sanchez asked LCSW Vigil to write Plaintiff a letter documenting Plaintiff’s depression and anxiety 15 symptoms, in addition to possible learning/intellectual disabilities. (AR 429–30.) LCSW Vigil 16 informed Sanchez that the latter topic was beyond the scope of her practice, and she could write a 17 letter pertaining only to Plaintiff’s mental health symptoms. (AR 430.) 18 On May 17, 2018, Plaintiff presented for a follow-up appointment with LCSW Vigil, and 19 they prepared an individualized action plan for Plaintiff. (AR 437–39.) 20 On June 5, 2018, LCSW Vigil submitted a one-page psychiatric medical source statement 21 on Plaintiff’s behalf. (AR 403.) LCSW Vigil opined that Plaintiff had “moderate” ability to 22 maintain concentration and attention, withstand the stress and pressures associated with work 23 activity, understand, remember, and carry out simple and complex instruction, and receive and carry 24 out instructions from supervisors; and “mild” ability to deal with the public and relate and interact 25 with co-workers. (AR 403.) 26 3. Golden Bear Physical Therapy 27 On March 1, 2017, Plaintiff started physical therapy for her back. (AR 378–81.) Her 28 sessions continued through April 24, 2017. (AR 382–400.) Notes from her last visit indicated that 1 Plaintiff was “being discharged due to lack of self reported progress,” and Plaintiff reported “no 2 change” in pain levels with therapy. (AR 399.) 3 4. Consultative Examiner David Pingitore, Ph.D. 4 On March 18, 2016, Dr. Pingitore, a certified clinical psychologist, performed a 5 psychological assessment of Plaintiff. (AR 315–17.) Upon examination, Dr. Pingitore found 6 Plaintiff to be alert and well-oriented, with adequate judgment and immediate attention, variable to 7 poor insight, and linear and goal-directed thought process. (AR 316.) Dr. Pingitore noted that “there 8 [wa]s likely poor effort and exaggeration of symptoms on cognitive testing during this 9 examination.” (AR 317.) Dr. Pingitore assessed Plaintiff with adjustment disorder with depressed 10 mood and a learning disability (primarily verbal type). (AR 317.) According to Dr. Pingitore, 11 Plaintiff understood most questions but responded with variable to poor performance; Plaintiff had 12 adequate persistence and pace and communication skills; Plaintiff’s socialization skills appeared 13 impaired but only by self-report; Plaintiff would be able to respond appropriately to supervisors, 14 coworkers, and the general public, and execute simple one and two-step commands. (AR 317.) 15 5. Consultative Examiner Dale Van Kirk, M.D. 16 On May 25, 2016, Dr. Van Kirk completed a comprehensive orthopedic evaluation of 17 Plaintiff. (AR 320–22.) Upon examination, Dr. Van Kirk found that Plaintiff had full range of 18 motion without pain or difficulty in the cervical spine, restricted range of motion in the dorsolumbar 19 spine, and normal sensation and muscle strength in her extremities. (AR 321–22.) 20 6. State Agency Physicians 21 On February 23, 2017, W. Jackson, M.D., a state agency physician reviewed the record and 22 assessed Plaintiff’s physical RFC. (AR 73–75, 88–90.) Dr. Jackson opined that Plaintiff could: lift 23 and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk (with normal 24 break) for six hours in an eight-hour workday; sit (with normal breaks) for six hours in an eight- 25 hour workday; and occasionally climb ramps, stairs, ladders, ropes, and scaffolds, balance, stoop, 26 kneel, crouch, and crawl. (AR 74.) Dr. Jackson further opined that Plaintiff should avoid 27 concentrated exposure to extreme cold and wetness due to her back pain. (AR 74, 75.) He also 28 noted that Plaintiff had “the allegation of foot pain and the found allegation of scoliosis.” (AR 75.) 1 Upon reconsideration on June 9, 2017, another state agency physician, E. Wong, M.D., reviewed 2 the record and affirmed Dr. Jackson’s findings. (AR 104–06, 118–20.) 3 B. Social Security Administration Interview Notes 4 On January 25, 2017, T. Smith, an SSA employee, interviewed Plaintiff over the phone in 5 conjunction with her application for disability benefits. (AR 232–33.) Smith observed that Plaintiff 6 had no difficulty with hearing, breathing, understanding, coherency, and concentrating. (AR 232.) 7 Smith noted that Plaintiff did have difficulty with talking and answering, specifically that she “had 8 a delayed response” and “she stuttered her words.” (AR 232.) 9 C. Plaintiff’s Adult Function Reports 10 1. Plaintiff 11 On February 1, 2017, Plaintiff completed an adult function report. (AR 257–65.) Plaintiff 12 indicated that she is able to take care of her pet birds on her own, tend to her personal care and take 13 medication without reminders, prepare simple meals, do light household chores for thirty minutes, 14 take public transportation, go grocery shopping twice a month, handle her own finances, watch 15 television, and talk to her friends and family over the phone. (AR 258–61.) Plaintiff also plays 16 bingo sometimes, but she “need[s] help.” (AR 261.) She needs reminders to go places, and her 17 fiancé accompanies her to her weekly doctors’ appointments. (AR 261.) 18 According to Plaintiff, she is unable to lift, squat, bend, stand, reach, walk, or kneel. (AR 19 262.) Her impairments affect her memory, concentration, understanding, and ability to complete 20 tasks. (AR 261.) Plaintiff stated that she cannot walk “even a block” and must rest for 20 to 30 21 minutes before she can resume walking. (AR 261.) Plaintiff has difficulties paying attention and 22 following instructions (written or spoken). (AR 261.) She gets along well with authority figures 23 but cannot handle stress or changes in routine. (AR 263.) 24 2. Plaintiff’s Fiancé 25 On February 1, 2017, Plaintiff’s fiancé Sanchez submitted an adult function report on 26 Plaintiff’s behalf. (AR 235–42.) Sanchez stated that Plaintiff helps him feed their pet birds once a 27 week. (AR 236.) Sanchez also indicated that Plaintiff is able to attend to her own personal care, 28 take medications without reminders, prepare simple meals daily, complete “simple” household 1 chores such as doing dishes, take public transportation, go grocery shopping, go out alone, handle 2 her finances, watch television, go for short walks in the apartment complex, and spend time with 3 friends and family. (AR 237–39.) Plaintiff cannot drive or do house or yard work. (AR 238.) 4 Sanchez stated that Plaintiff needs to have things explained to her sometimes and she does not follow 5 written or spoken instructions well. (AR 239, 240.) Sanchez also stated that Plaintiff gets along 6 well with authority figures, but she does not handle stress well. (AR 241.) 7 D. Administrative Proceedings 8 The Commissioner initially denied Plaintiff’s applications for SSI and DIB benefits on 9 March 6, 2017. (AR 127.) Plaintiff’s application for DIB benefits was denied again on 10 reconsideration on June 19, 2017. (AR 136.) Consequently, Plaintiff requested a hearing before 11 an Administrative Law Judge (“ALJ”). (AR 141.) At the hearing on June 14, 2018, Plaintiff 12 appeared with counsel and testified before an ALJ as to her alleged disabling conditions. (AR 39– 13 54.) 14 1. Plaintiff’s Testimony 15 Plaintiff testified that she was enrolled in special education classes from the third to twelfth 16 grades because she is a “slow learner.” (AR 39, 54.) She graduated high school. (AR 39.) Plaintiff 17 can read “Dr. Seuss type books,” but not a newspaper. (AR 47–48.) Writing is more difficult than 18 reading. (AR 48.) Plaintiff stated that she also has anxiety and depression and experiences panic 19 attacks daily. (AR 50.) According to Plaintiff, she has to lie down or rest for three to four hours 20 before she feels well enough “to go out and do things.” (AR 51.) She is currently seeing a licensed 21 clinical social worker once a month. (AR 48.) Plaintiff had been scheduled to see a psychiatrist, 22 but the visit did not occur after she was ten minutes late to the appointment. (AR 49.) Plaintiff 23 previously took medication for her mental health issues. (AR 48.) 24 Plaintiff worked as a fast food worker for six-and-a-half years before she injured her back 25 and was fired in 2012; Plaintiff ultimately received a workers’ compensation settlement.4 (AR 39, 26 226.) Her subsequent attempts at finding employment have been unsuccessful. (AR 40–41.) 27 4 The transcript of Plaintiff’s testimony indicates that Plaintiff worked for 16.5 years (see AR 39), rather than 6.5, and 28 this appears to be a transcribing error. (See AR 226 (indicating that Plaintiff worked as a fast food cashier from 2005 1 Plaintiff stated that she was born with scoliosis and has always had back pain, which was 2 exacerbated after her work injury. (AR 42.) According to Plaintiff, she has constant “[s]harp 3 shooting pains” in her lower-to-middle back. (AR 42–43.) Three weeks prior to the hearing, 4 Plaintiff’s fiancé gave her a non-prescribed cane. (AR 43.) Plaintiff stated that her doctor had 5 declined to prescribe her a cane because her insurance would not cover it. (AR 43.) Plaintiff lies 6 down for more than fifty percent of the day and takes medication to relieve her back pain; she also 7 takes hot baths. (AR 44–45.) Plaintiff does not use heat or ice when lying down because she does 8 not own a heating pad and does not have money to buy ice trays from the dollar store. (AR 44.) 9 She has never had back surgery, nor has any doctor ever discussed surgery with her. (AR 44–45.) 10 Plaintiff testified she also has foot pain, can stand for only fifteen minutes at a time and can sit for 11 only fifteen minutes before she must elevate her feet. (AR 46.) 12 Plaintiff testified that she lives in an apartment with her fiancé. (AR 41.) During the day, 13 she spends most of her time watching television in the living room. (AR 52.) Once every two 14 weeks, Plaintiff visits a friend that lives in the same apartment complex for about an hour. (AR 52– 15 53.) Plaintiff has traveled to Redding via train to visit her mother, and during the two-to-three-hour 16 trip, Plaintiff elevated her feet. (AR 47.) Because of her impairments, Plaintiff no longer goes to 17 church, parks, or the movies. (AR 53.) 18 2. Richard Cohen, M.D.’s Testimony 19 Dr. Cohen testified as an impartial medical expert. (AR 26, 55–59.) He had never examined 20 or treated Plaintiff. (AR 55.) In preparation for his testimony, Dr. Cohen reviewed Plaintiff’s 21 medical records. (AR 55–56.) Dr. Cohen assessed Plaintiff with borderline intellectual functioning, 22 a learning disorder not otherwise specified, major depressive disorder, and anxiety disorder “with 23 probable panic disorder.” (AR 57.) He opined that Plaintiff had “marginal ability” to adapt to the 24 stress of work and that Plaintiff was moderately to markedly impaired in her ability to utilize and 25 apply information and maintain concentration, persistence, and pace; and moderately impaired in 26 her ability to interact with others and adapt and manage herself. (AR 58.) 27 3. Vocational Expert’s Testimony 28 A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a fast- 1 food worker, Dictionary of Operational Titles (“DOT”) code 311.472-010, which was light work, 2 with a specific vocational preparation (“SVP”)5 of 2. (AR 60.) The ALJ asked the VE to consider 3 a person of Plaintiff’s age, education, and work experience. (AR 60.) The VE was also to assume 4 this person could: lift/carry 20 pounds occasionally and 10 pounds frequently; stand and walk for 5 six hours in an eight-hour workday; sit for six hours in an eight-hour work day; occasionally climb 6 stairs and ramps, balance, stoop, kneel, crouch and crawl; and never climb ladders, ropes, and 7 scaffolds. (AR 60–61.) The person also had to avoid concentrated exposure to extreme cold and 8 damp work environments. (AR 61.) The VE testified that person would be able to perform 9 Plaintiff’s past work. (AR 61.) 10 The ALJ asked the VE, in a second hypothetical, to consider the person in the first 11 hypothetical, but with the additional limitation that the person could perform simple one-and-two- 12 step tasks. (AR 61–62.) The VE testified that such a person could not perform Plaintiff’s past 13 relevant work but could perform other light jobs with an SVP of 2 in the national economy, such as 14 assembler, DOT code 712.687-010, and sorter, DOT code 222.687-014. (AR 62.)6 15 E. The ALJ’s Decision 16 In a decision dated October 31, 2018, the ALJ found that Plaintiff was not disabled, as 17 defined by the Act. (AR 16–28.) The ALJ conducted the five-step disability analysis set forth in 18 20 C.F.R. § 416.920. (AR 18–28.) The ALJ determined that Plaintiff had not engaged in substantial 19 gainful activity since January 1, 2012, the onset date (step one). (AR 18.) At step two, the ALJ 20 found Plaintiff’s following impairments to be severe: chronic thoracolumbar musculoligamentous 21 strain/sprain likely associated with degenerative disc disease, scoliosis of the spine, major 22 depressive disorder, anxiety disorder, and learning disability. (AR 18.) Plaintiff did not have an 23 impairment or combination of impairments that met or medically equaled one of the listed 24 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 19.) 25 26 5 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific 27 job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level – 28 over ten years of preparation). Id. 1 The ALJ then assessed Plaintiff’s RFC and applied the RFC assessment at steps four and 2 five. See 20 C.F.R. § 416.920(a)(4) (“Before we go from step three to step four, we assess your 3 residual functional capacity . . . . We use this residual functional capacity assessment at both step 4 four and step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff 5 had the RFC: 6 to perform light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b) except with the following limitations: lift and carry 20 pounds occasionally and 10 pounds 7 frequently[;] stand/walk six hours in an eight-hour workday[;] sit six hours in an eight-hour workday[;] occasional climbing of stairs and ramps, balancing, kneeling, 8 stooping, crouching and crawling; never climbing ladders, ropes, or scaffolds; should avoid concentrated exposure to extreme cold and damp work environments; 9 and is able to perform simple, one and two-step tasks. 10 (AR 20.)7 Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 11 to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not entirely 12 consistent with the medical evidence and other evidence in the record.” (AR 23.) 13 The ALJ determined that, given her RFC, Plaintiff was not able to perform her past relevant 14 work as a fast food worker (step four). (AR 26.) The ALJ ultimately concluded that Plaintiff was 15 not disabled because Plaintiff could perform a significant number of other jobs in the national 16 economy, specifically assembler and sorter (step five). (AR 27.) 17 On November 19, 2018, Plaintiff sought review of the ALJ’s decision before the Appeals 18 Council, which denied review. (AR 1, 200–02.) Therefore, the ALJ’s decision became the final 19 decision of the Commissioner. 20 C.F.R. § 416.1481. 20 III. LEGAL STANDARD 21 A. Applicable Law 22 An individual is considered “disabled” for purposes of disability benefits if he or she is 23 unable “to engage in any substantial gainful activity by reason of any medically determinable 24 physical or mental impairment which can be expected to result in death or which has lasted or can 25 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 26 27 7 Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds. 20 C.F.R. § 416.967(b). Although the weight lifted may be very little, a job is in this category when 28 it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling 1 However, “[a]n individual shall be determined to be under a disability only if his physical or mental 2 impairment or impairments are of such severity that he is not only unable to do his previous work 3 but cannot, considering his age, education, and work experience, engage in any other kind of 4 substantial gainful work which exists in the national economy.” Id. at § 423(d)(2)(A). 5 “The Social Security Regulations set out a five-step sequential process for determining 6 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 7 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 8 Ninth Circuit has provided the following description of the sequential evaluation analysis: 9 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 10 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 11 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 12 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable of 13 performing her past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to 14 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 15 16 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also 20 C.F.R. § 416.920(a)(4) (providing 17 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 18 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 19 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 20 “The claimant carries the initial burden of proving a disability in steps one through four of 21 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 22 1989)). “However, if a claimant establishes an inability to continue her past work, the burden shifts 23 to the Commissioner in step five to show that the claimant can perform other substantial gainful 24 work.” Id. (citing Swenson, 876 F.2d at 687). 25 B. Scope of Review 26 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 27 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 28 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” means “such 1 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 2 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 3 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but less than a 4 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 5 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 6 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 7 only if that decision is not supported by substantial evidence or it is based upon legal error.” Tidwell 8 v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the ALJ’s 9 conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., 10 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more 11 than one rational interpretation, the court may not substitute its judgment for that of the 12 Commissioner.” (citations omitted)). 13 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that 14 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 15 determine whether the Commissioner applied the proper legal standards and whether substantial 16 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d 17 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply 18 by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa 19 v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a 20 whole, weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 21 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 22 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 23 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 24 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 25 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti 26 v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 27 885 (9th Cir. 2006)). “[T]he burden of showing that an error is harmful normally falls upon the 28 party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) 1 (citations omitted). 2 IV. DISCUSSION 3 Plaintiff contends that the ALJ erred in three ways. First, Plaintiff claims that the ALJ’s 4 mental and physical RFC determinations are not supported by substantial evidence because the ALJ 5 erred in evaluation of medical opinion evidence. (Doc. 17 at 12–17.) Second, Plaintiff asserts that 6 the ALJ improperly discounted Plaintiff’s testimony regarding her subjective complaints and lay 7 evidence. (Doc. 17 at 19–26.) Lastly, Plaintiff contends that the ALJ’s erroneously determined at 8 step five that Plaintiff could perform work that exists in significant numbers in the national 9 economy. (Doc. 17 at 17–19.) For the reasons stated below, the Court determines that the ALJ 10 properly evaluated the medical opinion, testimonial, and lay evidence, but erred in determining that 11 Plaintiff could perform other work at step five. 12 A. The ALJ Properly Considered Plaintiff’s Statements and Testimony 13 1. Legal Standard 14 In evaluating the credibility of a claimant’s testimony regarding their impairments, an ALJ 15 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 16 the ALJ must determine whether the claimant has presented objective medical evidence of an 17 underlying impairment that could reasonably be expected to produce the symptoms alleged. Id. The 18 claimant is not required to show that their impairment “could reasonably be expected to cause the 19 severity of the symptom [he] has alleged; [he] need only show that it could reasonably have caused 20 some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 21 2007)). If the claimant meets the first test and there is no evidence of malingering, the ALJ can only 22 reject the claimant’s testimony about the severity of the symptoms if they give “specific, clear and 23 convincing reasons” for the rejection. Id. As the Ninth Circuit has explained: 24 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation 25 for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or 26 inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported 27 by substantial evidence, the court may not engage in second-guessing. 28 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 1 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may 2 consider include a claimant’s work record and testimony from physicians and third parties 3 concerning the nature, severity, and effect of the symptoms of which he complains. Light v. Soc. 4 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 5 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 6 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 7 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). General 8 findings are not sufficient to satisfy this standard; the ALJ “‘must identify what testimony is not 9 credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 F.3d 10 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 11 2. Analysis 12 The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be 13 expected to cause the alleged symptoms.” (AR 23.) The ALJ also found that “[Plaintiff’s] 14 statements concerning the intensity, persistence and limiting effects of these symptoms are not 15 entirely consistent with the medical evidence and other evidence in the record for the reasons 16 explained in this decision.” (AR 23.) Since the ALJ found that Plaintiff’s “medically determinable 17 impairments could reasonably be expected to cause the alleged symptoms,” the only remaining issue 18 is whether the ALJ provided “specific, clear and convincing reasons” for Plaintiff’s adverse 19 credibility finding. See Vasquez, 572 F.3d at 591. 20 The ALJ provided several reasons for discounting Plaintiff’s testimony: (1) Plaintiff’s 21 asserted limitations were inconsistent with her activities of daily living; (2) Plaintiff continued to 22 look for employment after her alleged onset date despite alleging disabling symptoms; (3) Plaintiff 23 received routine and conservative care for her impairments; and (4) Plaintiff’s statements were 24 inconsistent with the medical evidence and other evidence in the record. (AR 21, 23.) The Court 25 finds that the ALJ provided a clear and convincing reason for discounting Plaintiff’s statements and 26 credibility and thus did not err. 27 a. Activities of Daily Living 28 It is appropriate for an ALJ to consider a claimant’s activities that undermine claims of 1 severe limitations in making the credibility determination. See Thomas v. Barnhart, 278 F.3d 947, 2 958–59 (9th Cir. 2002) (an ALJ may support a determination that the claimant was not entirely 3 credible by identifying inconsistencies between the claimant’s complaints and the claimant’s 4 activities.). A claimant need not “vegetate in a dark room” to be deemed eligible for benefits. 5 Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987). However, if a claimant can spend a substantial 6 part of the day engaged in pursuits involving the performance of physical functions that are 7 transferable to a work setting, a specific finding as to this fact may be sufficient to discredit an 8 allegation of disability. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). “Even where [Plaintiff’s] 9 activities suggest some difficulty functioning, they may be grounds for discrediting the claimant’s 10 testimony to the extent that they contradict claims of a totally debilitating impairment.” Molina, 11 674 F.3d at 1113. 12 According to Plaintiff, she has difficulty with lifting, squatting, bending, standing, reaching, 13 walking, and kneeling. (AR 262.) She lies down for more than fifty percent of the day to relieve 14 her back pain, can sit or stand for only fifteen minutes at a time, and cannot walk “even a block.” 15 (AR 44–45, 46, 261.) Plaintiff also stated her impairments affect her memory, concentration, 16 understanding, and ability to complete tasks; she has difficulty paying attention and following 17 instructions (written or spoken). (AR 261.) In evaluating Plaintiff’s credibility, the ALJ stated that 18 Plaintiff had “described daily activities which are not limited to the extent one would expect, given 19 the complaints of disabling symptoms and limitations,” such as being able to 20 live with her fiancé, attend to her personal care without problems, take care of pet birds, remember to take her medications and attend to her personal care without 21 reminders, prepare simple meals on a daily basis, wash dishes, do light household chores, use public transportation, take the train to visit her mother in Redding, go out 22 alone, shop in stores for groceries twice a month, go to bingo occasionally, talk to family and friends over the phone every weekend, present for her medical 23 appointments every week with her fiancé, get along well with authority figures, pay bills, count change, manage her food stamps, handle a checking and savings account, 24 and watch television. 25 (AR 21, 23.) 26 The Court finds that the ALJ failed to explain how Plaintiff’s daily activities are inconsistent 27 with her testimony of her disabling symptoms. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) 28 (“The ALJ must make specific findings relating to [the daily] activities and their transferability to 1 conclude that a claimant’s daily activities warrant an adverse credibility determination.”) (internal 2 quotation marks and citation omitted); Cooper, 815 F.2d at 561. Plaintiff’s testimony that she can 3 do light household chores, prepare simple meals, and attend to her own personal care appears 4 consistent with the pain and limitations that Plaintiff describes. (AR 259.) The Court notes that, in 5 describing Plaintiff’s activities, the ALJ omitted Plaintiff’s testimony that Plaintiff elevated her legs 6 on the train ride to Redding, that she “need[s] help” when playing bingo, and that, although Plaintiff 7 could go out alone, it was “not that often” that she went outside. (AR 47, 260, 261.) See Garrison, 8 759 F.3d at 1015–16 (holding that the ALJ erred by mischaracterizing the claimant’s testimony 9 about her reported daily activities). 10 Moreover, that Plaintiff can handle her minimal finances and shop for groceries twice a 11 month (AR 260–61) does not on its face demonstrate that Plaintiff has the necessary capabilities to 12 work a full-time job. After listing Plaintiff’s activities, the ALJ stated only that “[t]his evidence is 13 inconsistent with [Plaintiff’s] alleged severity of the symptoms and limitations,” and did not offer 14 any further explanation as to why Plaintiff’s limited activities were inconsistent with her testimony 15 or how the activities met the threshold for transferable work skills. Accordingly, the inconsistencies 16 that the ALJ identified between Plaintiff’s daily activities and her pain testimony do not constitute 17 a clear, convincing, and specific reason to discount Plaintiff’s testimony regarding her disabling 18 symptoms and limitations. 19 b. Attempts to Look for Employment 20 The ALJ also discredited Plaintiff because “she continued to look for employment after the 21 alleged onset date but was unsuccessful in receiving calls from potential employers.” (AR 23.) The 22 mere fact that Plaintiff attempted to find a job, however, is insufficient to discount her statements. 23 See Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (“That [the claimant] sought employment 24 suggests no more than that he was doing his utmost, in spite of his health, to support himself.”). The 25 record reflects that Plaintiff had limited financial resources, evidenced by Plaintiff’s testimony that 26 she receives food stamps and is unable to afford ice trays from the dollar store. (AR 44, 54.) Thus, 27 Plaintiff was merely doing her best to support herself, and her attempt to find employment is not a 28 clear-and-convincing reason to discount her credibility. 1 c. Routine and Conservative Care 2 Another reason given by the ALJ for discrediting Plaintiff’s subjective statements is that 3 “the record reflects that [Plaintiff] received minimal treatment for her impairments and treatment 4 that was overall routine and conservative in nature.” (AR 23.) An ALJ may properly rely on the 5 fact that only conservative treatment has been prescribed. Johnson v. Shalala, 60 F.3d 1428, 1434 6 (9th Cir. 1995); Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 2007) (evidence of conservative 7 treatment is sufficient to discount a claimant’s testimony regarding severity of an impairment). The 8 ALJ noted that, although Plaintiff complained of disabling back pain (AR 21), her pain was treated 9 with only pain medications and two months of physical therapy in March and April 2017. (AR 372, 10 378–400.) At the hearing, Plaintiff testified that no doctor has ever suggested surgery for her back, 11 and that she lies down and takes medication and warm baths to relieve her back pain. (AR 44–45.) 12 Based on the foregoing, the ALJ did not err in finding that Plaintiff received conservative treatment 13 for her physical impairments and properly discounted Plaintiff’s credibility on that basis. See, e.g., 14 Tommasetti, 533 F.3d at 1040 (holding that the ALJ properly considered the plaintiff’s use of 15 “conservative treatment including physical therapy and the use of anti-inflammatory medication, a 16 transcutaneous electrical nerve stimulation unit, and a lumbosacral corset”); Jones v. Comm’r of 17 Soc. Sec., No. 2:12–cv–01714–KJN, 2014 WL 228590, at *7–10 (E.D. Cal. Jan. 21, 2014) (the ALJ 18 properly found that the claimant’s conservative treatment, which included physical therapy, anti- 19 inflammatory and narcotic medications, use of a TENS unit, occasional epidural steroid injections, 20 and massage therapy, diminished the claimant’s credibility). 21 As for Plaintiff’s mental impairments, Plaintiff commenced psychotherapy with LCSW 22 Vigil in at the end of January 2017, with appointments through March 2017 when Plaintiff stopped 23 treatment. (AR 336, 351–64.) Plaintiff reported some improvement with her anxiety and depression 24 through the use of deep breathing and visual grounding techniques. (AR 354, 360.) In November 25 2017, Dr. Halappa advised Plaintiff to follow up with counseling and prescribed Lexapro after 26 Plaintiff reported increased anxiety after a neighbor threatened her. (AR 407, 409.) In March 2018, 27 Plaintiff met with LCSW Vigil for an intake session after an exacerbation in her symptoms due to 28 recent news that she might lose her home and the death of her grandfather. (AR 415.) At the second 1 part of her intake session in April 2018, Plaintiff reported mild improvement with Lexapro, though 2 she continued to experience residual symptoms. (AR 433.) Plaintiff also informed LCSW Vigil 3 that she no longer wanted to be referred to a psychiatrist. (AR 429–30.) Plaintiff saw LCSW Vigil 4 again in May 2018. (AR 437.) At the hearing, Plaintiff testified she was no longer taking medication 5 for her mental health issues. (AR 48.) The Court finds that, although Plaintiff has sought mental 6 health treatment, the ALJ correctly noted that the treatment was conservative, consisting of 7 occasional therapy—the return to which appears to be triggered by major stressful events in 8 Plaintiff’s life (e.g., being threatened by her neighbor and the death of her grandfather)—and limited 9 use of medication. 10 Accordingly, the ALJ’s adverse credibility determination based on Plaintiff’s conservative 11 treatment for her physical and mental impairments will not be disturbed. 12 d. Inconsistency with the Medical Record 13 “[T]he Ninth Circuit has repeatedly emphasized that, ‘in evaluating the credibility of . . . 14 testimony after a claimant produces objective medical evidence of an underlying impairment, an 15 ALJ may not reject a claimant’s subjective complaints based solely on a lack of medical evidence 16 to fully corroborate the alleged severity of [the impairment].’” Ondracek v. Comm’r of Soc. Sec., 17 No. 1:15–cv–01308–SKO, 2017 WL 714374, at *8 (E.D. Cal. Feb. 22, 2017) (quoting Burch, 400 18 F.3d at 680); see, e.g., Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (a claimant’s 19 testimony “cannot be rejected on the sole ground that it is not fully corroborated by objective 20 medical evidence). Nonetheless, “lack of medical evidence . . . is a factor that the ALJ can consider 21 in h[er] credibility analysis.” Burch, 400 F.3d at 681. 22 The ALJ discounted Plaintiff’s testimony regarding the severity and limiting effects of 23 Plaintiff’s symptoms in part because Plaintiff’s complaints were inconsistent with the objective 24 medical evidence. (AR 23.) Specifically, the ALJ pointed (AR 21–22) to Plaintiff’s physical 25 examinations that documented tenderness and pain with range of motion but also findings of normal 26 muscle strength, sensation. (AR 321–22, 327.) In May 2018, Dr. Halappa noted that Plaintiff’s 27 back condition was stable and not disabling. (AR 444.) The ALJ also noted the “generally 28 unremarkable” findings at Plaintiff’s mental status examinations, other than notations of 1 “occasional[] depressed and/or anxious mood and depressive preoccupations or ruminations.” (AR 2 337, 409, 417, 434.) 3 Although the record contains evidence of repeatedly normal examinations and mental status 4 findings, the ALJ failed to specify what parts of this medical evidence undermined Plaintiff's 5 subjective symptom testimony. See Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). 6 Under Brown-Hunter, the observations an ALJ makes as part of the summary of the medical record 7 are not sufficient to establish clear and convincing reasons for rejecting a claimant’s credibility. 806 8 F.3d at 494. Instead, the ALJ must link the medical evidence at issue to the Plaintiff's testimony. 9 Id. The Court finds that the ALJ did not do so here. 10 This error, along with the ALJ’s inclusion of other invalid reasons for discounting Plaintiff’s 11 testimony, however, is harmless because the ALJ provided a valid reason—Plaintiff’s conservative 12 care—for finding Plaintiff not credible. See Molina, 674 F.3d at 1121 (“[S]everal of our cases have 13 held that an ALJ’s error was harmless where the ALJ provided one or more invalid reasons for 14 disbelieving a claimant’s testimony, but also provided valid reasons that were supported by the 15 record.”). 16 3. Harmless Error Analysis 17 In addition to bearing the burden of showing she is disabled, Plaintiff also has the burden of 18 establishing that any error resulted in actual harm. See Ludwig v. Astrue, 681 F.3d 1047, 1054–55 19 (9th Cir. 2012). An “ALJ’s error is harmless where it is inconsequential to the ultimate nondisability 20 determination.” See Molina, 674 F.3d at 1115 (internal quotation marks and citations omitted). 21 Even assuming the ALJ erred in discounting Plaintiff’s testimony about her mental impairments, 22 the error was harmless as Plaintiff has not set forth the functional limitations to which she testified 23 that were not accounted for in the ALJ’s mental RFC determination, and limit her to “simple, one 24 and two-step tasks” (AR 20). Plaintiff does not identify what portion of her testimony the ALJ 25 should have credited or what additional limitations should have been included in her mental RFC, 26 nor does she explain how the ALJ’s mental RFC determination is inconsistent with her testimony. 27 See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008); Stout, 454 F.3d 28 at 1055 (error harmless where it is non-prejudicial to claimant or irrelevant to the ALJ’s ultimate 1 disability conclusion). 2 B. The ALJ Did Not Harmfully Err in Considering the Lay Evidence 3 1. Plaintiff’s Fiancé Sanchez 4 An ALJ must consider the statements of lay witnesses in determining whether a claimant is 5 disabled. Stout, 454 F.3d at 1053. Lay witness evidence cannot establish the existence of medically 6 determinable impairments, but lay witness evidence is “competent evidence” as to “how an 7 impairment affects [a claimant’s] ability to work.” Id.; 20 C.F.R. § 416.913. The ALJ “must give 8 reasons that are germane to each witness” for rejecting lay witness statements. Nguyen v. Chater, 9 100 F.3d 1462, 1467 (9th Cir. 1996) (internal quotation marks and citation omitted). If the ALJ 10 gives germane reasons for rejecting testimony by one witness, the ALJ need only point to those 11 reasons when rejecting similar testimony by a different witness. Molina, 674 F.3d at 1114. 12 In weighing Sanchez’s statements, the ALJ explained: 13 The statements made by Mr. Sanchez appear overall to be a repetition of the subjective complaints already reported by [Plaintiff]. However, as discussed above, 14 [Plaintiff’s] allegations are not fully supported due to the inconsistencies in the record as a whole. Accordingly, I find Mr. Sanchez’s statements are also not fully 15 supported. 16 (AR 491.) 17 Pointing in part to the “child-like printing” and spelling errors in her own adult function 18 report—compared to Sanchez’s statement written in cursive—Plaintiff contends that the ALJ erred 19 in finding that Sanchez’s statement was a “repetition” of Plaintiff’s statement. (Doc. 17 at 25.) The 20 Court has reviewed both statements and finds that the statements are substantially similar. Both 21 Plaintiff and Sanchez indicated that: Plaintiff is able to take care of her pet birds, tend to her personal 22 care and take medication without reminders, prepare simple meals, do light household chores, take 23 public transportation, go grocery shopping, handle her own finances, watch television, and talk to 24 her friends and family over the phone; Plaintiff has difficulties paying attention and following 25 instructions (written or spoken); she gets along well with authority figures but cannot handle stress 26 or changes in routine. (AR 236–41, 258–63.) Plaintiff does not specifically identify what 27 limitations Sanchez alleged that should have been accepted by the ALJ. 28 1 Given that Sanchez’s statement was similar to Plaintiff’s statement, the same reason 2 proffered by the ALJ for rejecting Plaintiff’s statement is germane to the rejection of Sanchez’s 3 statement. As mentioned above, the ALJ properly rejected Plaintiff’s testimony on the grounds that 4 it was inconsistent with the routine and conservative care that Plaintiff received for her impairments. 5 This reason equally applies to discounting Sanchez’s statement, and any error by the ALJ in failing 6 to more specifically address Sanchez’s statement was harmless. Molina, 674 F.3d at 1114 (“[I]f the 7 ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to those 8 reasons when rejecting similar testimony by a different witness.”). 9 2. Social Security Administration Interviewer 10 Plaintiff also claims that the ALJ erred by failing to address the “statement” of T. Smith, an 11 SSA employee who interviewed Plaintiff by phone in January 2017. (Doc. 17 at 31.) Smith noted 12 that Plaintiff had difficulty talking and answering—specifically that she “had a delayed response” 13 and “she stuttered her words.” (AR 232.) The Court finds no harmful error. 14 To qualify as a competent lay witness, the witness must have had sufficient contact with the 15 claimant. See, e.g., Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996) (two week interaction with 16 claimant did not qualify therapist as lay witness); Smith v. Barnhart, No. C 00–4185 SI, 2002 WL 17 485050, at *4 (N.D. Cal. Mar. 27, 2002) (agency interviewer not a lay witness given lack of contact 18 with claimant); Geer v. Colvin, No. 6:12–CV–01796–KI, 2013 WL 5536870, at *10 (D. Or. Oct. 7, 19 2013) (same). Here, Smith had only one interaction with Plaintiff by phone and it is unclear how 20 long that interaction lasted. It also appears that Plaintiff’s counsel never alerted the ALJ to Smith’s 21 observations or raised the issue at the hearing. See Bolar v. Astrue, No. ED CV 10-1748 PJW, 2011 22 WL 5036826, at *2 (C.D. Cal. Oct. 24, 2011) (questioning whether SSA employee qualified as a 23 lay witness and advising that counsel “needs to alert the ALJ to the fact” “if she wants the ALJ to 24 consider brief notations by an interviewer in a 415-page record”). 25 Even assuming that the ALJ should have addressed Smith’s observation, the Court finds the 26 failure to do so harmless. As noted by the Commissioner, Plaintiff never alleged she has a stutter 27 or other speech impediment, (Doc. 18 at 18), and fails to explain why Smith’s observation is 28 1 relevant to, or how it would change the RFC or the ultimate non-disability determination. Stout, 2 454 F.3d at 1056. 3 C. The ALJ’s RFC Determination Is Supported by Substantial Evidence 4 Plaintiff contends that the ALJ’s mental and physical RFC determinations are not supported 5 by substantial evidence because the ALJ erred in her evaluation of the medical opinion evidence. 6 For the reasons explained below, the Court finds that the ALJ did not harmfully err and the RFC is 7 supported by substantial evidence. 8 1. Mental RFC 9 a. Non-Examining Physician Dr. Cohen 10 The ALJ must consider and evaluate every medical opinion of record. See 20 C.F.R. § 11 404.1527(b) and (c) (applying to claims filed before March 27, 2017); Mora v. Berryhill, No. 1:16– 12 cv–01279–SKO, 2018 WL 636923, at *10 (E.D. Cal. Jan. 31, 2018). In doing so, the ALJ “cannot 13 reject [medical] evidence for no reason or the wrong reason.” Mora, 2018 WL 636923, at *10. 14 Cases in this circuit distinguish between three types of medical opinions: (1) those given by a 15 physician who treated the claimant (treating physician); (2) those given by a physician who 16 examined but did not treat the claimant (examining physician); and (3) those given by a physician 17 who neither examined nor treated the claimant (non-examining physician). Fatheree v. Colvin, No. 18 1:13–cv–01577–SKO, 2015 WL 1201669, at *13 (E.D. Cal. Mar. 16, 2015). 19 “Generally, a treating physician’s opinion carries more weight than an examining 20 physician’s, and an examining physician’s opinion carries more weight than a reviewing 21 physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citations omitted); see 22 also Orn, 495 F.3d at 631 (“By rule, the Social Security Administration favors the opinion of a 23 treating physician over non-treating physicians.” (citing 20 C.F.R. § 404.1527)). “To evaluate 24 whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court 25 considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the 26 opinions.” Cooper v. Astrue, No. CIV S–08–1859 KJM, 2010 WL 1286729, at *2 (E.D. Cal. Mar. 27 29, 2010). 28 Here, Dr. Cohen testified as an impartial medical expert who had not examined or treated 1 Plaintiff. (AR 26, 55.) Based on his review of Plaintiff’s medical records, Dr. Cohen opined that 2 Plaintiff was moderately to markedly impaired in her ability to utilize and apply information and 3 maintain concentration, persistence, and pace; and moderately impaired in her ability to interact 4 with others and adapt and manage herself. (AR 58.) Because Dr. Cohen was a non-examining 5 physician, the ALJ was not required to provide “specific and legitimate reasons” supported by 6 substantial evidence for discounting Dr. Cohen’s opinion, as Plaintiff claims. (See Doc. 17 at 13.) 7 “The weight afforded a non-examining physician’s testimony depends on the degree to which they 8 provide supporting explanations for their opinions.” Ryan, 528 F.3d at 1201. 9 In assigning “little weight” to Dr. Cohen’s opinion, the ALJ stated that the opinion appeared 10 “to have relied too heavily on [Plaintiff’s] subjective statements,” and was inconsistent with the 11 objective medical evidence and Plaintiff’s reported improvement with treatment. (AR 26.) With 12 regard to reliance on Plaintiff’s subjective statements, the ALJ pointed to Dr. Cohen’s reference to 13 Plaintiff’s PHQ-98 score of 19 (AR 57)—indicating moderately severe depression—in support of 14 his opinion, and the ALJ explained that the score was based on a “subjectively assessed screen for 15 depression and . . . not based on the objective evidence.” (AR 26.) See Lim v. Saul, No. 18–CV– 16 07519–VKD, 2020 WL 2557000, at *8 (N.D. Cal. May 20, 2020) (“the PHQ-9 questionnaire reflects 17 [the claimant’s] reported self-assessment”). As discussed above, the ALJ properly discredited 18 Plaintiff’s testimony about her subjective symptoms, and it was not error for the ALJ to discount 19 Dr. Cohen’s opinion based on its reliance on Plaintiff’s subjective complaints. See Fair, 885 F.2d 20 at 605 (holding that physician's opinion may be disregarded if it is based on subjective complaints 21 that have already been discredited). 22 The ALJ also explained that Dr. Cohen’s opinion was inconsistent with the generally 23 unremarkable findings at Plaintiff’s mental status examinations and her reported improvement with 24 treatment. (AR 26.) Although Plaintiff was observed to be anxious and depressed at various mental 25 status examinations and therapy sessions, Plaintiff was also found to be engaged, cooperative, and 26 27 8 PHQ-9 refers to a specific patient health questionnaire. The PHQ-9 “is a[n] instrument for making criteria-based diagnoses of depressive and other mental disorders commonly encountered in primary care.” Norman v. Berryhill, No. 28 17-CV-04108-SI, 2018 WL 4519952, at *2 (N.D. Cal. Sept. 19, 2018) (citing Kurt Kroenke, MD, et al., The PHQ-9: 1 fully oriented with appropriate mood and affect. (AR 337, 409, 434.) Plaintiff was also found to 2 have average intelligence and cognition, insight, and judgment within normal limits. (AR 337, 417, 3 434.) As noted by the ALJ, Plaintiff also reported some improvement with her symptoms due to 4 her medication and the use of deep breathing and visual grounding techniques. (AR 354, 362, 433.) 5 An ALJ “may reject the opinion of a non-examining physician by reference to specific evidence in 6 the medical record.” Sousa, 143 F.3d at 1244. Therefore, the ALJ did not err in rejecting Dr. 7 Cohen’s opinion. 8 Plaintiff claims that the ALJ “simply disagreed with Dr. Cohen’s interpretation of the 9 psychiatric evidence and indulged her own lay view of Plaintiff’s impairments.” (See Doc. 17 at 10 15.) This contention is unavailing. Dr. Cohen’s opinion is contradicted by that of examining 11 psychologist Dr. Pingitore, who opined that Plaintiff’s communication skills and pace and 12 persistence were adequate, and Plaintiff could respond appropriately to supervisors-co-workers, and 13 the general public. (AR 317.) The ALJ afforded “great weight” to Dr. Pingitore’s opinion, and 14 Plaintiff does not contest that the ALJ’s specific reasons for doing so are supported by substantial 15 evidence. Generally, “greater weight is accorded to the opinion of an examining physician than a 16 non-examining physician.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); 20 C.F.R. §§ 17 404.1527(c)(1), 416.927(c)(1). “In fact, the opinion of a non-examining physician, without more, 18 cannot constitute substantial evidence when the opinion conflicts with the opinion of an examining 19 physician.” Smith v. Berryhill, No. SA CV 17–516–E, 2017 WL 5158633, at *1 (C.D. Cal. Nov. 6, 20 2017) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)). Given the reasons proffered 21 by the ALJ and the ALJ’s proper reliance on the opinion of the examining psychologist Dr. 22 Pingitore, the Court concludes that the ALJ did not err in rejecting the opinion of the non-examining 23 physician Dr. Cohen. 24 b. Licensed Clinical Social Worker Vigil 25 LCSW Vigil was Plaintiff’s treating therapist. (See, e.g., AR 336–39, 351–64.) On June 5, 26 2018, LCSW Vigil submitted a one-page psychiatric medical source statement on Plaintiff’s behalf, 27 opining that Plaintiff had “moderate” ability to maintain concentration and attention, withstand the 28 stress and pressures associated with working, understand, remember, and carry out simple and 1 complex instructions, and receive and carry out instructions from supervisors; and “mild” ability to 2 deal with the public and relate and interact with co-workers. (AR 403.) 3 In assigning “little weight” to LCSW Vigil’s opinion, the ALJ stated: 4 First, Ms. Vigil’s opinion is quite conclusory and provides no explanation of the evidence upon which she relies, as she does not document positive findings to 5 support the limitations assessed. Second, the opinion is inconsistent with Ms. Vigil’s own treatment records . . . . The opinion is also inconsistent with and unsupported by 6 the evidence in the record as a whole . . . . [T]he opinion appears to rely quite heavily on [Plaintiff’s] subjective report of symptoms and limitations and to uncritically 7 accept as true most, if not all, of what the claimant reported. However, as explained elsewhere in this decision, there exist good reasons to question the consistency of 8 [Plaintiff’s] subjective complaints with the objective evidence. 9 (AR 25–26.) 10 As an initial matter, the ALJ was not required to assess LCSW Vigil’s opinion under the 11 standard applicable for a treating physician as Plaintiff contends (see Doc. 17 at 13). Under the 12 regulations, only “licensed physicians and certain qualified specialists” are considered acceptable 13 medical sources. 20 C.F.R. § 404.1513(a); see also Molina, 674 F.3d at 1111. Social workers are 14 not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 15 1217, 1223–24 (9th Cir. 2010). Instead, social workers are “other sources,” whose opinions are 16 given less weight than those from “acceptable medical sources,” but who may help the ALJ 17 “understand how [the claimant’s] impairment affects [the claimant’s] ability to work.” Lederle v. 18 Astrue, No. 1:09–cv–01736–JLT, 2011 WL 839346, at *11 (E.D. Cal. Feb. 17, 2011) (citing Gomez 19 v. Chater, 74 F.3d 967, 970–71 (9th Cir. 1996)); 20 C.F.R. §§ 404.913(d), 404.1513(d). While 20 social workers are not “acceptable medical sources” for evidence of impairment, the ALJ still must 21 “provide reasons that are germane to the witness” when discounting their opinions. Hill v. Comm’r, 22 No. 1:14–cv–01813–SAB, 2016 WL 5341274, at *2 (E.D. Cal. Sept. 23, 2016) (citing Molina, 674 23 F.3d at 1111). 24 Here, the ALJ provided several germane reasons for discounting LCSW Vigil’s opinion. 25 First, the ALJ found that LCSW Vigil‘s opinion was “quite conclusory and provide[d] no 26 explanation of the evidence upon which she relies, as she does not document positive findings to 27 support the limitations assessed.” (AR 25.) The ALJ may reject an “other source” opinion that is 28 brief, conclusory, and inadequately supported by clinical findings. Molina, 674 F.3d at 1111–12. 1 Because LCSW Vigil’s medical source statement consisted primarily of one word answers to the 2 questions on the form and LCSW Vigil did not cite to specific findings or other evidence in the 3 record to support her opinion, (see AR 403), the ALJ was entitled to reject her opinion. 4 Second, the ALJ reasoned that LCSW Vigil’s opinion was inconsistent with her own 5 treatment notes. (AR 25.) Specifically, the ALJ explained that LCSW Vigil’s assessed limitations 6 conflicted with LCSW’s regular notations that Plaintiff was cooperative, had average intelligence, 7 and had no cognitive defects. (AR 337–38, 417, 434.) The ALJ further noted that other medical 8 evidence in the record indicated that Plaintiff routinely had “generally remarkable mental status 9 findings with the exception of occasionally depressed and/or anxious mood and depressive 10 preoccupations or ruminations.” (AR 25.) 11 Third, as with Dr. Cohen’s opinion, the ALJ found that LCSW Vigil’s opinion “rel[ied] quite 12 heavily on [Plaintiff’s] subjective report of symptoms and limitations.” (AR 25.) Because the ALJ 13 rejected Dr. Cohen’s opinion for the same reason, LCSW Vigil’s reliance on Plaintiff’s subjective 14 complaints was also a “germane” reason for the ALJ to reject LCSW Vigil’s opinion. See Kartje v. 15 Comm’r of Soc. Sec. Admin., No. CV–18–03240–PHX–SMB, 2020 WL 5887495, at *4 (D. Ariz. 16 Oct. 5, 2020). Accordingly, the ALJ did not err in rejecting LCSW Vigil’s opinion. 17 2. Physical RFC 18 a. Dr. Halappa 19 Plaintiff alleges—and the record reflects—that Dr. Halappa was her treating physician. (See, 20 e.g., AR 326–35.) In his treatment notes on January 30, 2017, Dr. Halappa indicated that Plaintiff 21 was “physically and mentally disabled for full time work.” (AR 334.) 9 Plaintiff contends that the 22 ALJ erred in failing to address this opinion. (Doc. 17 at 15–16.) The Court finds that any error was 23 harmless. A physician’s opinion on the ultimate issue of disability is not entitled to controlling 24 weight because statements “by a medical source that [a claimant] is ‘disabled’ or ‘unable to work’ 25 ” “are not medical opinions” under the Social Security regulations. 20 C.F.R. §§ 404.1527(e), 26 416.927(e). An ALJ “is precluded from giving any special significance to the source; e.g., giving a 27 28 9 In May 2018, Dr. Halappa also noted that Plaintiff had been “persistently asking for disability for her back condition,” 1 treating source’s opinion controlling weight” when it is on an issue reserved to the Commissioner, 2 such as the ultimate issue of disability. SSR 96-5p, 1996 WL 374183 at *3 (July 2, 1996). Here, 3 Dr. Halappa opined only that Plaintiff was disabled, and he did not articulate any specific functional 4 limitations on Plaintiff’s ability to work. (See AR 334.) Because Dr. Halappa’s opinion was 5 conclusory and addressed only the ultimate issue of disability—an issue reserved to the 6 Commissioner—the ALJ did not harmfully err in failing to address it. 7 Dr. Halappa also submitted a medical source statement on Plaintiff’s behalf on March 29, 8 2018. (AR 402.) Dr. Halappa opined that Plaintiff could lift no more than 25 pounds for two to 9 three hours in an eight-hour day, sit for four hours at one time without rest or support, stand and/or 10 walk for four hours at one time without rest or support, sit for six hours over an eight-hour period, 11 and stand and/or walk for six hours over an eight-hour period. (AR 402.) Dr. Halappa also opined 12 that “due to chronic back pain, [Plaintiff] need[ed] breaks to rest her back.” (AR 402.) The ALJ 13 ultimately assigned “great weight” to Dr. Halappa’s “general assessment that [Plaintiff] could 14 perform light work.” (AR 24–25.) 15 Plaintiff contends that the ALJ erred in failing to include Dr. Halappa’s limitation that she 16 needed breaks to rest her back in the RFC determination, or to otherwise provide legally adequate 17 reasons for the omission of such a limitation. (Doc. 17 at 21.) The ALJ is responsible for 18 “translating and incorporating clinical findings into a sufficient RFC.” Rounds v. Comm’r Soc. Sec. 19 Admin., 807 F.3d 996, 1006 (9th Cir. 2015). “The ALJ’s findings need only be consistent with, not 20 identical to, the limitations assessed by the relevant medical opinion.” Michael G. C. v. Comm’r of 21 Soc. Sec., No. C18-5875 TLF, 2019 WL 6907790, at *4 (W.D. Wash. Dec. 19, 2019) (citing Turner, 22 613 F.3d at 1224). 23 Plaintiff does not challenge the ALJ’s reliance on Dr. Halappa’s opinion, and the ALJ found 24 that Plaintiff could perform light work with the sitting and standing/walking limitations opined by 25 Dr Halappa. Plaintiff has not provided any evidence that the “breaks” mentioned by Dr. Halappa 26 are anything more than the standard breaks required to be provided by an employer. Indeed, Dr. 27 Halappa opined that Plaintiff was able to sit for four hours at one time without rest or support and 28 stand and/or walk for four hours at one time without rest or support. (AR 402.) Because the ALJ’s 1 RFC determination is consistent with, and sufficiently incorporates, Dr. Halappa’s opinion, the ALJ 2 did not err in his evaluation of the opinion. See Michael G. C., 2019 WL 6907790, at *4 (finding 3 that the ALJ did not err in failing to incorporate in the RFC or address a limitation that the claimant 4 needed “adequate breaks and rest periods” from a medical opinion afforded great weight). 5 b. Plaintiff’s Asthma and Foot Pain 6 Plaintiff also claims that the ALJ erred in formulating the physical RFC because the ALJ 7 failed to consider Plaintiff’s asthma and foot pain. (Doc. 17 at 16–17.) With regard to Plaintiff’s 8 alleged asthma, Plaintiff did not identify asthma as an impairment on her application for benefits. 9 (See AR 225.) Indeed, when the ALJ asked Plaintiff at the hearing whether she had physical 10 problems other than her back pain that would keep her from working, Plaintiff did not mention 11 asthma as an issue. (See AR 45–46.) “Plaintiff has provided the court with no authority stating that 12 when determining severe impairments or making the RFC assessment, the ALJ must consider 13 conditions not identified in the application for benefits. Plaintiff has therefore not shown legal error 14 in the ALJ’s failure to do so in this case.” Price v. Berryhill, No. 16–CV–04624–NJV, 2017 WL 15 4224923, at *6 (N.D. Cal. Sept. 22, 2017). Furthermore, Plaintiff has not articulated any additional 16 restrictions on her ability to work resulting from her asthma. See Valentine 574 F.3d at 692 n.2; 17 Kay v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) (the “mere diagnosis of an impairment . . . is 18 not sufficient to sustain a finding of disability.”). 19 As for Plaintiff’s foot pain, the ALJ did not harmfully err in failing to address the 20 impairment. Plaintiff testified that she could only be on her feet for 15 minutes at a time because of 21 her foot pain (AR 45–46), and the record reflects that the ALJ considered this limitation in making 22 the RFC determination (AR 21 (ALJ noting Plaintiff’s testimony that “she had difficulty . . . standing 23 for more than about 15 minutes at a time”)). As explained above, the ALJ properly found Plaintiff’s 24 testimony to not be credible and did not include the limitation. The state agency physicians also 25 considered Plaintiff’s foot pain and opined that she had the RFC to perform light work with 26 restrictions (AR 73–75, 88–90, 104–06, 118–20), and the ALJ assigned “great weight” to those 27 opinions and adopted a consistent RFC (see AR 24). Plaintiff has not articulated any additional 28 limitations based on her foot pain that should have been adopted by the ALJ. Accordingly, Plaintiff 1 has not carried her burden to demonstrate harmful error by the ALJ. See Shinseki, 556 U.S. at 409 2 (the burden of showing harmful error normally falls on the party challenging the determination). 3 D. The ALJ’s Step Five Finding that Plaintiff Can Perform Other Work Is Not Supported by Substantial Evidence and Remand Is Warranted 4 5 At step five, “the Commissioner has the burden ‘to identify specific jobs existing in 6 substantial numbers in the national economy that [a] claimant can perform despite [his] identified 7 limitations.’” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (quoting Johnson, 60 F.3d at 8 1432). Plaintiff contends that the ALJ erred in finding that Plaintiff was able to perform the jobs of 9 assembler and sorter, both of which require Level 2 Reasoning, given that the ALJ’s RFC 10 determination limited her to performing simple, one- and two-step tasks. (Doc. 17 at 17–19.) The 11 Court agrees. 12 The ALJ included a limitation in Plaintiff’s mental RFC that she could perform “simple, one 13 and two-step tasks.” (AR 20.) Based on the VE’s testimony, the ALJ concluded that Plaintiff could 14 perform at least two jobs: assembler and sorter. According to the DOT, both of these jobs require 15 Level 2 Reasoning. DOT code 712.687-010 (assembler), 222.687-014 (sorter). 16 In Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996 (9th Cir. 2015), the Ninth Circuit held 17 that a limitation to one- and two-step tasks is incompatible with jobs requiring Level 2 Reasoning. 18 Id. at 1003. The Ninth Circuit observed that a limitation to one- and two-step tasks is more akin to 19 Level 1 Reasoning, which “requires a person to apply commonsense understanding to carry out 20 simple one-or-two step instructions.” Id. at 1002–1003. By contrast, a limitation to “simple, routine, 21 or repetitive work” is consistent with Level 2 Reasoning. Zavalin, 778 F.3d at 847. Because the 22 RFC here included the express limitation to one- and two-step tasks, Plaintiff was precluded from 23 performing either of the jobs identified by the VE. 24 In contending the ALJ’s error was harmless and attempting to distinguish Rounds, the 25 Commissioner essentially asks this Court to ignore the ALJ’s inclusion of the one- and two-step- 26 task limitation in the RFC and conclude that Plaintiff was actually limited to “simple repetitive 27 work.” (Doc. 18 at 19–21 (“Although the ALJ adopted a more restrictive RFC, the expert State 28 1 psychiatric consultants opined that Plaintiff had no more than moderate symptoms and could 2 perform simple repetitive work, curing any error.”).) This the Court cannot do. 3 An RFC determination is within the exclusive province of the ALJ. 20 C.F.R. § 4 404.1527(d)(2); see David P. v. Saul, No. 3:19–CV–1506–BEN–AHG, 2020 WL 4593311, at *3 5 (S.D. Cal. Aug. 11, 2020). As the Ninth Circuit stated in Rounds: 6 There is no explanation in the record as to why . . . the ALJ may have believed that [the claimant’s] specific limitation to ‘one to two step tasks’ should not be taken at 7 face value. As such, the record does not support a conclusion that the ALJ’s failure to resolve this apparent conflict was harmless error. This Court cannot affirm the 8 decision of an agency on a ground that the agency did not invoke in making its decision. 9 10 Rounds, 807 F.3d at 1004 (internal quotation marks and citations omitted). Because the ALJ did 11 not recognize the apparent conflict between Plaintiff’s RFC and the demands of Level 2 Reasoning, 12 the VE did not address whether the conflict could be resolved. Remand is thus warranted so the 13 ALJ can determine “whether there is a reasonable explanation to justify relying on the VE’s 14 testimony,” Rounds, 807 F.3d at 1004, or whether there exist other jobs that Plaintiff could perform 15 given her RFC. 16 V. CONCLUSION AND ORDER 17 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 18 substantial evidence and is therefore VACATED, and the case is REMANDED to the ALJ for 19 further proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter 20 judgment in favor of Plaintiff Tara Fae Alexander and against Defendant Andrew Saul, 21 Commissioner of Social Security. 22 IT IS SO ORDERED. 23 Sheila K. Oberto 24 Dated: March 10, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 25 26 27 28