(SS) Albaugh v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVIS SCOTT ALBAUGH, Case No. 1:22-cv-00424-BAM 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 v. FOR SUMMARY JUDGMENT 14 KILOLO KIJAKAZI, Acting Commissioner (Doc. 17) 15 of Social Security, 16 Defendant. 17 18 19 INTRODUCTION 20 Plaintiff Travis Scott Albaugh (“Plaintiff”) seeks judicial review of a final decision of the 21 Commissioner of Social Security (“Commissioner”) denying his application for Supplemental Security 22 Income (“SSI”) under Title XVI of the Social Security Act. The parties’ briefing on the motion was 23 submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe. (Docs. 17, 18.)1 24 Having considered the briefing and record in this matter, the Court finds that the decision of 25 the Administrative Law Judge (“ALJ”) is supported by substantial evidence in the record as a whole 26 27 1 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, 28 including entry of final judgment, pursuant to 28 U.S.C. § 636(c). (Doc. 20.) 1 and based upon proper legal standards. Accordingly, this Court will deny Plaintiff’s motion for 2 summary judgment, deny his appeal of the administrative decision, and affirm the agency’s 3 determination to deny benefits. 4 FACTS AND PRIOR PROCEEDINGS 5 On April 29, 2011, Plaintiff filed an application for supplemental security income (SSI) on 6 April 29, 2011. AR 138, 205. Plaintiff alleged that he became disabled on December 17, 2010, due to 7 pain in his knees, legs, and right ankle. AR 138, 141, 205 (noting protective filing date of April 29, 8 2010). On July 12, 2013, these claims were denied. AR 138-145. The Appeals Council denied 9 review. AR 169-178. 10 On January 28, 2015, Plaintiff filed his second SSI application, alleging disability beginning 11 May 1, 2014, due to ankle, knee, back, and neck problems. AR 182, 204-205. This claim was denied 12 initially and upon reconsideration. AR 182. Plaintiff then requested a hearing, which was held on 13 August 23, 2017. Id. Plaintiff’s second SSI application was denied in a decision dated September 11, 14 2017. AR 182-191. The Appeals Council denied review. AR 198-203. 15 On March 12, 2019, Plaintiff protectively filed his third and current application for SSI 16 benefits. AR 204, 335-343, 359. Plaintiff alleged that his disability began on July 14, 2018, due to 17 sleep apnea, hypertension, pre-diabetes mellitus, back pain, neck pain, knee problems, dysphagia, 18 shortness of breath, depression, and anxiety. AR 20-24, 204, 335–343, 359. These claims were 19 denied initially on September 11, 2019, and upon reconsideration on December 27, 2019. AR 17, 20 204–219, 220–236, 245-251. Subsequently, Plaintiff requested a hearing before an ALJ. ALJ Koren 21 Mueller held a hearing on November 19, 2020. AR 38-70. ALJ Mueller issued an order denying 22 benefits on the basis that Plaintiff was not disabled on March 2, 2021. AR 14-33. Plaintiff sought 23 review of the ALJ’s decision, which the Appeals Council denied, making the ALJ’s decision the 24 Commissioner’s final decision. AR 1-6. In their denial, the Appeals Council noted that Plaintiff 25 submitted a medical source statement from Dr. Ivana Choudhury but found that the evidence did “not 26 show a reasonable probability that it would change the outcome of the decision” and did not exhibit 27 the evidence. AR 2. 28 /// 1 November 19, 2020 Hearing Testimony 2 The ALJ held a telephonic hearing on November 19, 2020. AR 38-70. Plaintiff appeared with 3 his attorney, Lars Christenson. Id. Susan Johnson, an impartial vocational expert, also appeared and 4 testified. AR 65-70. Plaintiff’s attorney noted that there were new neck MRIs, and the ALJ stated that 5 he would leave the record open for thirty days for the MRIs and physical therapy records. AR 45-46. 6 The ALJ admitted Exhibits C1A through C8A, C1B through C15B, C1D through C9D, C1E through 7 C13E, and C1F through C17F into evidence. AR 46. 8 In his opening statement, Plaintiff’s attorney Mr. Christenson stated that Plaintiff’s allegation 9 of changed circumstances since the previous ALJ denial was based upon a long history of 10 degenerative disease in his lumbar spine and cervical spine that is worsening. AR 47. Mr. Christenson 11 noted that Plaintiff had a recommendation for surgery in 2018. Id. Mr. Christenson also noted that 12 Plaintiff was told by a new neurosurgeon that Plaintiff did not need surgery, but Mr. Christenson 13 argued that the new neurosurgeon did not classify his MRI findings correctly. Id. Mr. Christenson 14 argued that Plaintiff “clearly has moderate to severe stenosis” while his new neurosurgeon found no 15 stenosis. AR 47-48. Plaintiff additionally argues that he has changed circumstances involving his 16 mental health, which is affected by the longevity of his physical impairments. AR 48. Plaintiff’s 17 irritability and ability to get along with other people has been impacted by his physical symptoms. Id. 18 Mr. Christenson further noted that Plaintiff experienced numbness, tingling, and difficulty using his 19 arms, but had not received a nerve test following a referral. Id. Mr. Christenson argued that Plaintiff’s 20 symptoms, upper extremities issues have further declined since the previous ALJ denial. Id. 21 In response to questions from the ALJ, Plaintiff testified that he lived upstairs in a two-story 22 complex. Id. Plaintiff stated that it was very difficult and painful for him to go up the stairs, though 23 coming down the stairs was easier. Id. He testified that he recently asked property management if he 24 could get a downstairs apartment if he received medical clearance, and was told that he could get a 25 downstairs apartment, though Plaintiff has not yet received such clearance. AR 48-49. Plaintiff 26 testified that he was single, lived alone, and had a therapy cat. AR 49. 27 Plaintiff testified that he does not have any children. Id. Plaintiff was 5’10” tall and weighed 28 243 pounds. Id. Plaintiff had a current driver’s license and completed 12th grade. AR 49-50. 1 Plaintiff attempted a semester in college but quit as it became too difficult. AR 50. Plaintiff’s source 2 of income was general assistance, and he was on Section 8 for housing. Id. Plaintiff testified that he 3 was not currently working. AR 51. Plaintiff testified that in the past, he did not work at businesses, 4 but was self-employed or worked for his parents but did not file taxes on income during the 1990s. Id. 5 Plaintiff testified that he did “under the table work” where he was paid and filed taxes in 2018 when 6 he was working and when he and his mother won a jackpot at a casino. Id. Plaintiff has not worked 7 for his parents since 1999 when they closed their business. AR 52. Plaintiff did odd jobs, including 8 one involving washing windows in 2017 that he was terminated from due to his pain from bending. 9 AR 52-53. His final job was in 2017. AR 52. 10 Plaintiff said that his back and neck issues kept him from working. AR 53. Plaintiff stated that 11 his lower back pain made it “very difficult” for him to sit in the car and “difficult” to sit at home. AR 12 54. He testified that he cannot sit on the couch for very long, that it is painful to sweep the floor, and 13 that it is painful for him to bend over to pick up the dustpan. Id. He also testified that it was difficult 14 for him to wash dishes because his fingers would get sore, causing him dropped dishes while washing 15 them. Id. Plaintiff also found it painful to sleep in bed or walk upstairs and required someone else to 16 help him with shopping because he could not carry heavy bags or other items for a long distance. Id. 17 Plaintiff testified that he took pain pills to help deal with the pain, but they were not helping with the 18 pain and his doctor eventually stopped his pain pill prescription. AR 55. Plaintiff testified that he was 19 going to try some new pain management and was trying to use some of the physical therapy exercises 20 that helped with the pain. Id. He also testified that he took Aspirin to help manage the pain. Id. He 21 said that the Aspirin and other medication and exercise “gets it to where it’s manageable and bearable 22 to where [he] can actually move.” AR 55-56. 23 Plaintiff also stated that his right ankle had been swollen for years. AR 56. He testified that 24 his ankle would turn sideways and cause him to fall while walking. Id. However, he noted that the 25 “main issues” were his back and neck. Id. 26 In response to questioning from his attorney, Plaintiff noted that in 2018 he had problems with 27 dropping things and having pain in his arms and fingers when a neurosurgeon recommended neck 28 surgery. AR 57. Plaintiff testified that these problems had not improved since that time. Id. Plaintiff 1 further noted that he had a conversation with a neurosurgeon at Kaweah Delta who told Plaintiff that 2 he recommended a different course of treatment after looking at Plaintiff’s MRIs. AR 57-58. Plaintiff 3 testified that the Kaweah Delta neurosurgeon told him that he did not recommend surgery because 4 Plaintiff could get more usage out of his neck and back based upon his age. AR 58. 5 Plaintiff testified that his back and neck pain were distracting and demanded his attention 6 “24/7.” AR 58-59. He said that he experienced pain while sitting in a vehicle and while sleeping, 7 causing him to toss and turn to try to relieve the pain. AR 59. He further testified that he could not sit, 8 stand, or walk for long periods of time. Id. He stated that he could sit on the couch “a couple minutes 9 before the pain’s real…” and would need to switch positions by laying on the floor, moving back to 10 the couch, and then sitting in a recliner to slightly relieve the pain. Id. He testified that he adjusted his 11 position every 10-15 minutes on a good day. AR 60. He said he also attempted to lay in bed to relieve 12 the pain and felt pain when he bent down to pet his cat or put his shoes on. Id. Plaintiff testified that 13 he could only walk a block or two before needing to stop due to pain. AR 61. He also testified that he 14 would get out of breath going up the stairs. Id. 15 Plaintiff testified that he had sensations going up and down his arms and hands “most of the 16 time” but not “all the time.” AR 62. When asked how the pain and tingling affects his ability to use 17 his arms and hands, he said that other than washing and dropping the dishes, he did not “even know 18 it’s happening.” Id. He said that the doctors “don’t know what’s wrong with” the ringing in his ears, 19 but suggested it was an infection or vertigo. Id. Plaintiff stated that he can still sweep in his small 20 apartment. Id. He also stated that the effect of the sensations on his functions is “minimal,” but his 21 back pain causes it to be “real hard to do things like pick up things.” Id. Plaintiff stated that he could 22 use a pen, but his fingers would get sore if he wrote for more than 3-5 minutes. AR 63. Plaintiff 23 additionally noted that he is unsure if he has arthritis. AR 63. 24 In response to questioning from his attorney, Plaintiff agreed that he suffered from depression 25 and anger problems that caused him to lose friends and to get argumentative with other people. AR 26 63-64. Plaintiff has snapped at people he doesn’t know in public. AR 64. Plaintiff said that he gets 27 irritable and upset and was diagnosed with major depression and anxiety. Id. Plaintiff stated that he 28 was taking pills for his mental health issues but told his doctor that the medication is not helping him 1 or working effectively with his issues. Id. He also testified that he had been referred to a behavioral 2 therapist. Id. 3 Following Plaintiff’s testimony, the ALJ elicited testimony from VE Susan Johnson. AR 65- 4 70. The ALJ began by noting that Plaintiff did not have prior relevant work experience, so began to 5 ask hypotheticals. AR 66. For the hypotheticals, the ALJ asked the VE to consider an individual with 6 the same age, education, and past work experience as Plaintiff. Id. The ALJ also asked the VE to 7 assume that the individual could work at a light exertional level as defined in the Regulations with the 8 limitations that the individual can frequently climb ramps and stairs; can never climb ladders, ropes, or 9 scaffolds; can frequently balance; can frequently stoop, kneel, crouch, and crawl. AR 66-67. The VE 10 stated that there would be jobs available in the national economy. AR 67. The VE stated that 11 potential jobs included: Furniture Rental Clerk (DOT 295.357-018; light; SVP 2; approximately 12 58,289 jobs); Bench Assembler (DOT 699.685-026; light; SVP 2; approximately 571,000 jobs); and 13 Routing Clerk (DOT 222.687-022; light; SVP 2; 97,733 jobs). Id. 14 For the second hypothetical, the ALJ added that the individual would be able to perform 15 simple, routine tasks with minimal changes in job duties and job setting. Id. The ALJ also added that 16 the hypothetical individual should avoid exposure to concentrated dusts, gasses, odors, fumes, and 17 poor ventilation. Id. The VE testified that for this hypothetical, she would remove the Bench 18 Assembler position, and add in its place Counter Attendant (DOT 311.477-014; light; SVP 2; 180,000 19 jobs). Id. She confirmed that the Furniture Rental Clerk and Routing Clerk positions would remain 20 for the individual. Id. 21 The ALJ then asked how many absences from work due to symptoms and treatment are 22 tolerated in the national economy. AR 67-68. The VE responded that most employers allow up to one 23 absence per month on an ongoing basis, but that more than one absence per month would preclude 24 employment. AR 68. 25 Plaintiff’s attorney then asked the VE to assume the individual from the first hypothetical and 26 to add that the individual would need to change position every 15 minutes. Id. The VE stated that the 27 Furniture Rental Clerk position would remain. Id. Plaintiff’s attorney then asked about the effect on 28 potential jobs if the individual had to go from sitting to standing to sitting to standing and back every 1 15 minutes and the VE testified that “at that frequency… that would be preclusive.” Id. For a second 2 hypothetical, Plaintiff’s attorney asked that the VE consider a hypothetical individual who would not 3 respond appropriately to coworkers, the public, or supervisors on an occasional basis. AR 69. 4 Specifically, the hypothetical individual would be argumentative, irritable, inappropriate, and snap at 5 others. Id. The VE testified that if this was an ongoing situation, that would not be tolerated by 6 employers. Id 7 The VE testified that her testimony was consistent with the Dictionary of Occupational Titles 8 and Selected Characteristics of Occupations. Id. She further testified that her testimony regarding 9 absenteeism was based on her job placement experience as the DOT does not specifically address 10 absenteeism or sitting and standing requirements. Id. 11 Medical Record 12 The relevant medical record was reviewed by the Court and will be referenced below as 13 necessary to this Court’s decision. 14 The ALJ’s Decision 15 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 16 determined that Plaintiff was not disabled under the Social Security Act. AR 14-37. Specifically, the 17 ALJ found that Plaintiff had not engaged in substantial gainful activity since March 12, 2019, the 18 protected filing date. AR 20. The ALJ identified the following severe impairments: Cervical 19 Degenerative Disc Disease, Lumbar Degenerative Disc Disease and Right Ankle post-traumatic 20 changes from a history of an Achilles Tendon Rupture.” Id. The ALJ additionally identified 21 Plaintiff’s hypertension, prediabetes or Type II diabetes mellitus, obstructive sleep apnea, shortness of 22 breath, asthma or chronic obstructive pulmonary disease, obesity, major depressive disorder, anxiety, 23 bilateral problems, and dysphagia but noted that they were well-controlled and/or did not result in 24 functional limitations. AR 20-24. The ALJ determined that Plaintiff did not have an impairment or 25 combination of impairments that met or medically equaled any of the listed impairments. AR 24-25. 26 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 27 functional capacity (“RFC”) to perform light work with limitations to: frequently climbing ramps and 28 stairs; never climbing ladders, ropes, or scaffolds; frequently balancing; and frequently stooping, 1 kneeling, crouching, or crawling. AR 25-32. With this RFC, and considering Plaintiff’s age, 2 education, and work experience, the ALJ found that Plaintiff has no past relevant work but could 3 perform work in the national economy, including positions such as: Furniture Rental Clerk (DOT 4 295.357-018, 58,289 such jobs in the national economy); Bench Assembler (DOT 699.685-026, 5 571,000 such jobs in the national economy); and Routing Clerk (DOT 222.687-022, 97,733 such jobs 6 in the national economy). AR 32-33. The ALJ therefore concluded that Plaintiff had not been under a 7 disability from the protective filing date of March 12, 2019. AR 33. 8 SCOPE OF REVIEW 9 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 10 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 11 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 12 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 13 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 14 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 15 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 16 considered, weighing both the evidence that supports and the evidence that detracts from the 17 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 18 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 19 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 20 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 21 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 22 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 23 REVIEW 24 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 25 substantial gainful activity due to a medically determinable physical or mental impairment which has 26 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 27 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 28 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 1 her age, education, and work experience, engage in any other kind of substantial gainful work which 2 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 3 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 4 1990). 5 DISCUSSION2 6 Plaintiff contends that the ALJ erred by finding that Plaintiff’s anxiety and depression were 7 non-severe impairments at Step Two. (Doc. 17 at 12.) Plaintiff further contends that the ALJ’s RFC 8 did not include limitations related to Plaintiff’s anxiety and depression. (Id.) Finally, Plaintiff argues 9 that the Appeals Council failed to consider the additional medical source statement Plaintiff submitted 10 from the Sequoia Health and Wellness Centers. (Id. at 15-17.) 11 A. Step Two and RFC 12 Plaintiff first argues that the ALJ erroneously concluded that his anxiety and depression were 13 non-severe at Step Two of the sequential evaluation. (Doc. 17 at 12.) Plaintiff further contends that 14 the ALJ’s error in Step Two meant that the RFC did not include limitations related to Plaintiff’s 15 anxiety and depression. (Id.) 16 At step two of the five-step sequential evaluation, the ALJ is required to determine whether a 17 plaintiff has a “severe” medical impairment or combination of impairments. 20 C.F.R. § (a)-(c). An 18 impairment, or combination of impairments, can be found to be non-severe if the evidence establishes 19 a slight abnormality that has no more than a minimal effect on an individual’s ability to work. See 20 SSR 85–28, 1985 WL 56856 (Jan. 1, 1985); see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 21 1988) (adopting SSR 85–28). “The mere existence of an impairment is insufficient proof of a 22 disability.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir.1993). A claimant bears the burden of 23 proving that an impairment is disabling. Id. (citation omitted). 24 “Step two is merely a threshold determination meant to screen out weak claims.” Buck v. 25 Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017), citing Bowen v. Yuckert, 482 U.S. 137, 146–47 (1987). 26 27 2 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific 28 argument or brief is not to be construed that the Court did not consider the argument or brief. 1 “It is not meant to identify the impairments that should be taken into account when determining the 2 RFC . . . . The RFC . . . should be exactly the same regardless of whether certain impairments are 3 considered ‘severe’ or not.” Id. (emphasis in original). Any error in failing to include an impairment 4 at step two is harmless if the ALJ considered any limitations imposed by the impairment in the RFC 5 determination at step four. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (“The decision reflects 6 that the ALJ considered any limitations posed by the bursitis at Step 4. As such, any error that the ALJ 7 made in failing to include the bursitis at Step 2 was harmless.”). 8 Here, at step two of the sequential evaluation, the ALJ addressed Plaintiff’s depression and 9 anxiety: 10 The claimant’s medically determinable mental impairments of major depressive disorder and anxiety do not cause more than minimal 11 limitation in the claimant’s ability to perform basic mental work activities and are therefore nonsevere. In making this finding, the 12 undersigned has considered the broad functional areas of mental 13 functioning set out in the disability regulations for evaluating mental disorders and in the Listing of Impairments (20 CFR, Part 404, Subpart 14 P, Appendix 1)… 15 AR 21. The ALJ then summarized the mental examination findings and relevant record related to 16 Plaintiff’s depression and anxiety. AR 21-24. Following this review, the ALJ examined the record 17 through the lens of the four functional areas of mental functioning: (1) understanding, remembering, or 18 applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; 19 and (4) adapting or managing oneself. AR 23-24. In each of these areas, the ALJ found either no 20 limitation or mild limitation and concluded that, “[b]ecause the claimant’s medically determinable 21 mental impairment causes no more than ‘mild’ limitation in any of the functional areas and the 22 evidence does not otherwise indicate that there is more than a minimal limitation in the claimant’s 23 ability to do basic work activities, it is nonsevere (20 CFR 416.920a(d)(1)).” AR 24. 24 First, the ALJ evaluated Plaintiff’s mental impairments using the technique outlined in the 25 Code of Federal Regulations. 20 C.F.R. § 416.920a. The technique “identified four broad functional 26 areas in which [the Social Security Administration] will rate the degree of your functional limitation: 27 Understand, remember, or apply information; interact with others; concentrate, persist, or maintain 28 1 pace; and adapt or manage oneself.” 20 C.F.R. § 416.920a(c)(3). If “[the Social Security 2 Administration] rate the degrees of your limitation as “none” or “mild,” [the Administration] will 3 generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates that 4 there is more than a minimal limitation in your ability to do basic work activities.” 20 C.F.R. § 5 416.920a(d)(1). The ALJ properly followed the technique outlined by reviewing the record regarding 6 Plaintiff’s depression and anxiety and then applying the facts from the record to each of the functional 7 areas. AR 23-24. 8 In the functional area of understanding, remembering, or applying information, the ALJ found 9 no limitation where both the initial State Disability Determination Agency reviewer and 10 reconsideration reviewer concluded that Plaintiff had no limitation and “the mental status 11 examinations tend to be unremarkable.” AR 23; 210 (“follows directions pretty good”); 212-213 12 (Agency Reviewer noting “Understand, remember, or apply information: None”); 229 (Agency 13 Reviewer noting “Understand, remember or apply information: None”); 793 (“Grossly intact attention, 14 Memory – recent/remote judged adequate by interview”); 799 (“Grossly intact attention, Memory - 15 recent/remote judged adequate by interview”); 805 (“Cognition/Attention/Memory/Concentration: 16 Alert and oriented x4”); 811 (“Cognition/Attention/Memory/Concentration: Alert and oriented x4”); 17 813 (“Cognition/Attention/Memory/Concentration: Alert and oriented x4, Grossly intact attention, 18 Memory - recent/remote judged adequate by interview”); 819 19 (“Cognition/Attention/Memory/Concentration: Alert and oriented x4, Grossly intact attention, 20 Memory - recent/remote judged adequate by interview”); 942-943 21 (“Cognition/Attention/Memory/Concentration : Grossly intact attention, Memory - recent/remote 22 judged adequate by interview”). 23 In the functional area of interacting with others, the ALJ found Plaintiff had a mild limitation 24 where the State Disability Determination Agency reviewers found mild limitation and interviewers 25 noted that Plaintiff was able to establish rapport, maintain appropriate eye contact and demeanor, and 26 rarely appeared restless or in a bad mood. AR 23; See AR 210 (“spends time w/ others, doesn’t go 27 out, irritable, argues…”); 213 (Agency Reviewer noting “Interact with others: Mild”), 229 (Agency 28 Reviewer noting “Interact with others: Mild”); 793-794 (mental status examination notes appropriate 1 appearance, normal behavior, good mood, full affect, logical and goal directed thought processes); 2 798-799 (mental status examination notes appropriate appearance, normal behavior, stressed mood, 3 full affect, logical and goal directed thought processes); 942-943 (mental status examination notes 4 appropriate appearance, normal behavior, “okay” mood, full affect, logical and goal directed thought 5 processes). 6 Similarly, in the functional area of concentrating, persisting, or maintaining pace, the ALJ also 7 found Plaintiff had a mild limitation. AR 23. The ALJ stated that this finding was supported by the 8 agency reviewer’s conclusions and by: Plaintiff performing simple math calculations when asked, 9 Plaintiff remaining on task when interviewed, Plaintiff maintaining conversational exchanges, and 10 Plaintiff not meeting the diagnostic criteria for attention deficit hyperactivity disorder or requiring 11 medication to concentrate. AR 23-24; See AR 213 (Agency Reviewer noting “Concentrate, persist, or 12 maintain pace: Mild”); 229 (Agency Reviewer noting “Concentrate, persist, or maintain pace: Mild”); 13 793-794 (mental status examination notes logical and goal-directed thought process/associations, 14 grossly intact attention, good insight, and good judgment); 798-799 (mental status examination notes 15 logical and goal-directed thought process/associations, grossly intact attention, fair insight and 16 judgment); 942-943 (mental status examination notes logical and goal-directed thought 17 process/associations, grossly intact attention, fair insight and judgment). 18 In the fourth functional area of adapting or maintaining oneself, the ALJ found no limitation 19 where the record showed Plaintiff generally maintained appropriate hygiene and attire, managed 20 difficult situations such as working through insurance issues, and did not have any conflicts during the 21 application process or seeking healthcare. AR 24; See AR 213 (Agency Reviewer noting “Adapt or 22 manage oneself: None”); 229 (Agency Reviewer noting “Adapt or manage oneself: None”); 583 (“The 23 client was casually dressed and somewhat malodorous.”); 798 (“appropriately dressed and groomed”), 24 813 (“appropriately dressed and groomed”); 819 (“Appropriately dressed and groomed”); 942 25 (“appropriately dressed and groomed”). The ALJ also noted that the “evidence does not otherwise 26 indicate that there is more than a minimal limitation in the claimant’s ability to do basic work 27 activities,” and so appropriately followed the process outlined by the Social Security Administration to 28 find Plaintiff’s impairments nonsevere. See 20 C.F.R. § 416.920a(d)(1). 1 Second, the ALJ’s Step Two analysis of Plaintiff’s depression and anxiety pointed to evidence 2 that Plaintiff’s depression and anxiety was controlled through therapy and medication including 3 Zoloft, Wellbutrin, Attarax, and Hydroxyzine. AR 21-23. Substantial evidence supports an ALJ’s 4 finding that an impairment is not severe when medical records show that the claimant’s impairment 5 has been controlled by treatment. See Huff v. Astrue, 275 F. App’x 713, 717 (9th Cir. 2008) (finding 6 ALJ did not err in finding claimant’s depression to be non-severe because the ALJ reasonably relied 7 on physician’s finding that claimant’s depression had improved with treatment); Kenneth K. v. 8 Berryhill, 2018 WL 6991256, at *4 (D. Or. Dec. 19, 2018) (finding ALJ’s determination that 9 claimant’s diabetes was not a severe impairment was supported by substantial evidence because 10 medical records showed her diabetes was “controlled”), report and recommendation adopted by, 2019 11 WL 165700 (D. Or. Jan. 10, 2019). 12 In this case, Plaintiff utilized therapy and medications including Zoloft, Wellbutrin, Attarax, 13 and Trazodone. See AR 796-797 (Therapy service and CBT recommended, emotional support animal 14 letter provided to Plaintiff, noting Zoloft and Wellbutrin dosages increased on last visit); 804-805 15 (Plaintiff reported return of depressive symptoms but “reports wellbutrin helped slightly;” Plaintiff 16 prescribed Trazodone to help with sleep issues); 813-814 (Zoloft increased and Attarax prescribed 17 following increased anxious mood); 940-941 (Continuing Zoloft, Wellbutrin, and Trazodone; therapy 18 services recommended to help with stress reduction, coping skills, and frustration tolerance). Though 19 Plaintiff’s depression and anxiety symptoms varied, the record showed that he was responding well to 20 the treatment provided. See AR 688 (Plaintiff reports “less difficulty concentrating…slightly more 21 motivation and energy… sleep has improved since starting the medications… no longer getting upset 22 as quickly and feels more in control.”); 791-792 (Plaintiff “reports improvement in his mood, 23 irritability, and anxiety since last visit” at which his dosages of Zoloft and Wellbutrin were increased 24 and Trazodone was added to address his insomnia; Plaintiff additionally attributed improvements to 25 adopting an emotional support cat); 810 (“Reports partial improvement of depressive symptoms from 26 increasing zoloft, endorses some loss of interest, irritability, sadness, low energy, difficulty 27 concentrating. Denies hopelessness or SI. Reports anxiety is intermittent, but has not needed to take 28 hydroxyzine in months now.”); 940-942 (Plaintiff “indicates that his mood, appetite, and anxiety are 1 well controlled, which he attributes to his emotional support cat”; no change in prescriptions of Zoloft, 2 Wellbutrin, and Trazodone). Additionally, mental status examinations typically revealed 3 unremarkable findings. AR 697-698; 793-794; 798-799; 811; 813 (generally normal findings though 4 slurred speech and anxious mood); 819 (generally normal findings though slurred speech and anxious 5 mood); 942-943. Accordingly, the ALJ appropriately assessed medical records to determine that 6 Plaintiff’s anxiety and depression had been controlled by treatment and were therefore non-severe. 7 Plaintiff argues that the ALJ improperly “cherry picked” from medical evidence to support the 8 Step Two finding that Plaintiff’s anxiety and depression were nonsevere. (Doc. 17 at 15.) The Ninth 9 Circuit has noted that it is “improper for the ALJ to discount [a claimant’s] testimony by ‘cherry 10 pick[ing]’ the absence of certain symptoms from the report.” Diedrich v. Berryhill, 874 F.3d 634, 642 11 (9th Cir. 2017). The Ninth Circuit further cautioned that, “[w]hile ALJs obviously must rely on 12 examples to show why they do not believe that a claimant is credible, the data points they choose must 13 in fact constitute examples of a broader development to satisfy the applicable ‘clear and convincing’ 14 standard.” Garrison v. Colvin, 759 F.3d 995, 1018 (9th Cir. 2014). Here, the ALJ appears to have 15 examined and cited the relevant treatment notes and record in evaluating Plaintiff’s anxiety and 16 depression rather than choosing unrepresentative data points. See AR 21-24; 688; 697-698; 791-794; 17 798-799; 804-805; 810-811; 813-814; 940-942. Accordingly, the ALJ properly evaluated Plaintiff’s 18 depression and anxiety at Step Two. 19 Even assuming arguendo that the ALJ failed to find certain, unspecified cardiac impairment(s) 20 severe at step two, any such error is harmless because the ALJ considered any limitations imposed by 21 Plaintiff’s anxiety and depression at step four of the sequential evaluation. Lewis, 498 F.3d at 911. At 22 Step Four, the ALJ thoroughly considered the symptoms and limitations imposed by Plaintiff’s 23 depression and anxiety and found them minor: 24 The claimant’s testimony provided a vivid description of the symptoms of his depression and anxiety. He asserted the medications were not 25 working. This is contrary to the mental health records where he showed improvement when started on medications and improvement when his 26 medications were adjusted. In his testimony, he described how he was 27 being referred to a behavioral therapist. The mental health records indicate the plan was to coordinate psychotropic medications with 28 1 psychotherapy and counseling, plus lifestyle modifications. He had not taken the next step towards any mental health treatment beyond the 2 medications he stated were not working. As directed in Social Security Ruling 16-3p, the undersigned considered possible reasons why he was 3 not obtaining treatment consistent with his complaints. All indications 4 are that he understands what treatments are available to provide symptom relief and he requires consistent treatment. There are no 5 indications that he has been advised that he has exhausted the available treatment options. He has medical insurance and access issues have 6 more to do with finding providers who accept his insurance. There is no 7 indication he had problems with treatment side effects… Although his subjective complaints of pain and discomfort are not disregarded 8 because they are not supported by objective medical evidence, his subjective complaints are not very persuasive because the alleged level 9 of impairment is inconsistent with the preponderance of the evidence as 10 a whole. 11 AR 31; See AR 688; 697-698; 791-794; 798-799; 804-805; 810-811; 813-814; 940-942. 12 Based on the foregoing, the Court finds that the ALJ did not commit reversible error at Step 13 Two of the sequential evaluation or in determining Plaintiff’s RFC. 14 B. Appeals Council Evidence 15 Plaintiff next contends that the Appeals Council committed harmful error by failing to consider 16 the additional medical source statement Plaintiff submitted by Dr. Choudhury of the Sequoia Health 17 and Wellness Centers. (Doc. 17 at 15-17.) Defendant responds that Dr. Choudhury’s opinion did not 18 have a reasonable probability of changing the outcome of the decision, the ALJ’s opinion was 19 supported by substantial evidence, Dr. Choudhury’s opinion does not contradict the ALJ’s decision, 20 Dr. Choudhury’s opinion does not sufficiently support Plaintiff’s allegations of pain, and Dr. 21 Choudhury’s opinions were contradicted by the medical record. (Doc. 18 at 13-16.) 22 The Ninth Circuit has “routinely considered evidence submitted for the first time to the 23 Appeals Council to determine whether, in light of the record as a whole, the ALJ’s decision was 24 supported by substantial evidence.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th 25 Cir. 2012) (“we hold that when the Appeals Council considers new evidence in deciding whether to 26 review a decision of the ALJ, that evidence becomes part of the administrative record, which the 27 district court must consider when reviewing the Commissioner’s final decision for substantial 28 1 evidence.”); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1030 n.2 (9th Cir. 2007) (noting that when 2 Appeals Council considers new evidence in denying a claimant’s request for review, the reviewing 3 court considers “both the ALJ’s decision and the additional evidence submitted to the Appeals 4 Council”). 5 The Regulations govern when the Appeals Council is obligated to review additional evidence 6 submitted after the ALJ issues a decision. See 20 C.F.R. § 416.1470 (applicable to applications for 7 SSI benefits) (eff. Dec. 16, 2020). Pursuant to the regulations in effect at the time of Plaintiff's appeal, 8 the Appeals Council “will review a case if ... the Appeals Council receives additional evidence that is 9 new, material, and relates to the period on or before the date of the hearing decision, and there is a 10 reasonable probability that the additional evidence would change the outcome of the decision.” 20 11 C.F.R. § 416.1470(a)(5). 12 “It is the claimant’s burden to establish the evidence should have been considered by the 13 Appeals Council under the Regulations.” Silva v. Comm'r of Soc. Sec., No. 1:21-cv-01038-SAB, 2023 14 WL 316535, at *14 (E.D. Cal. Jan. 19, 2023) (citing Hawks v. Berryhill, No. 1:17CV1021, 2018 WL 15 6728037 at *4 (M.D.N.C. Dec. 21, 2018)). This burden includes establishing the evidence is new, 16 material, and there is a reasonable probability that the additional evidence would change the outcome 17 of the decision, it relates to the period on or before the date of the hearing decision, and good cause 18 exists for the late submission. 20 C.F.R. § 416.1470(a)–(b). 19 Here, Plaintiff submitted a medical source statement by Dr. Ivana Choudhury from Sequoia 20 Health and Wellness Centers dated August 17, 2021. AR 2; 7-8. Dr. Choudhury marked that Plaintiff 21 was limited to “Sedentary” work in lifting and carrying, and could use his left and right hands and 22 arms for simple grasping, fine manipulation, push/pull, reaching, writing, or keyboarding 23 approximately 50 to 80% of the day. AR 7. Dr. Choudhury further marked that Plaintiff was limited 24 to “Sedentary” work in the standing, sitting, walking category, which means that he could stand or 25 walk “combined no more than about 2 hours, and sitting approximately 6 hours of an 8-hour 26 workday.” Id. Dr. Choudhury further noted that Plaintiff must rest away from his workstation for 27 approximately 15 minutes per day. Id. Dr. Choudhury also marked that Plaintiff could push/pull leg 28 and foot controls for approximately 20% of the day and must elevate his legs for approximately 20% 1 of an 8-hour day. Id. She also marked that Plaintiff could bend 0% of the day, stoop 10% of the day, 2 and balance 30% of the day. Id. She further marked that she believed Plaintiff’s complaints of pain 3 and that there were laboratory or clinical findings documenting a condition which could reasonably be 4 expected to give rise to this degree of pain. AR 8. She wrote that degenerative joint disease could 5 give rise to the pain, as evidenced by “MRI findings.” Id. She marked that the severity of the pain 6 would cause Plaintiff to be: mentally off-task for 5% of the day, prevented from focusing on all but 7 one-step and two-step tasks for 10% of the day, and prevented from focusing on even one-step and 8 two-step tasks for 5% of the day. Id. The Appeals Council acknowledged this evidence but 9 determined that it did not “show a reasonable probability that it would change the outcome of the 10 decision.” AR 2. 11 Plaintiff argues that “evidence is material because it creates a reasonable possibility that the 12 outcome of the case would be different.” (Doc. 17 at 16.) Specifically, Plaintiff appears to argue that 13 a different outcome was reasonably probable because Dr. Choudhury’s opinion support Plaintiff’s 14 complaints of increased pain. (Id. at 16-17.) However, Plaintiff’s argument is conclusory and does 15 not demonstrate how the additional evidence would create a reasonable probability that the outcome 16 would change. In his brief, Plaintiff broadly states that “[c]hronic pain leads to complications such as 17 decreased quality of life, depression, and anxiety; complications the ALJ improperly found were non- 18 severe” and notes that Dr. Choudhury’s statement “incorporates Mr. Albaugh’s complaints into a 19 single functional profile.” Id. These assertions do not cite to evidence in the record beyond a brief 20 reference to Plaintiff’s hearing testimony, and do not allow the Court to conclude there is a reasonable 21 probability that the outcome of the case would be different. 22 Furthermore, Plaintiff does not explain how Dr. Choudhury’s opined limitations directly 23 support Plaintiff’s complaints of disabling pain to produce a different outcome in the case. Instead, 24 Dr. Choudhury’s opinion appears to conflict with Plaintiff’s symptoms testimony. For instance, Dr. 25 Choudhury’s estimated amount of time Plaintiff would be off task is much shorter than Plaintiff’s 26 “24/7” assertion. See AR 8 (Dr. Choudhury opined that the severity of the pain would cause Plaintiff 27 to be mentally off-task for 5% of the day); 58-59 (Plaintiff notes that the pain is “distracting” “24/7” 28 and interferes with his memory, concentration, and ability to complete tasks). Plaintiff’s claimed 1 duration of time needed between breaks due to pain also differs from Dr. Choudhury’s opinion. See 2 AR 7 (Dr. Choudhury marked that Plaintiff could sit for approximately six hours in an eight-hour 3 workday and would need a 15-minute rest away from his workstation); 59-60 (Plaintiff testified that 4 he could not sit for more than 10-15 minutes at a time before needing to switch positions). 5 Additionally, Dr. Choudhury’s opinion does not cite to supporting evidence beyond a reference to 6 “MRI findings." AR 8. To the extent that the MRI findings cited by Dr. Choudhury are the same as 7 those cited and discussed in the ALJ decision, this also suggests that Dr. Choudhury’s opinion would 8 not have changed the outcome of the case. See AR 25-30 (examining MRI findings). Because 9 Plaintiff does not satisfy his burden of showing that Dr. Choudhury’s statement was “new, material, 10 and relates to the period on or before the date of the hearing decision” and that there was “a reasonable 11 probability that the additional evidence would change the outcome of the decision,” he fails to 12 demonstrate the Appeals Council erred. See 20 C.F.R. §§ 416.1470(a)(5); 416.1570. 13 The Court therefore concludes that the ALJ and the Appeals Council did not err in their 14 analysis, and the ALJ’s disability determination was supported by substantial evidence. 15 CONCLUSION 16 For the reasons stated, the Court finds that the ALJ’s decision is supported by substantial 17 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 18 DENIES Plaintiff’s motion for summary judgment and appeal from the administrative decision of the 19 Commissioner of Social Security. The Clerk of this Court is DIRECTED to enter judgment in favor of 20 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, and against Plaintiff Travis Scott 21 Albaugh. 22 IT IS SO ORDERED. 23 Dated: June 7, 2023 /s/ Barbara A. McAuliffe _ 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28