(SS) Chavez Mendoza v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EDUARDO CHAVEZ MENDOZA, Case No. 1:23-cv-00350-EPG 11 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 12 v. SECURITY COMPLAINT 13 COMMISSIONER OF SOCIAL (ECF Nos. 1, 13). SECURITY, 14 15 Defendant. 16 17 This matter is before the Court on Plaintiff’s complaint for judicial review of an 18 unfavorable decision by the Commissioner of the Social Security Administration regarding his 19 application for supplemental security income benefits. The parties have consented to entry of 20 final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), 21 with any appeal to the Court of Appeals for the Ninth Circuit. (ECF No. 9). 22 Plaintiff argues as follows: 1. The ALJ’s RFC determination is unsupported by substantial evidence as he 23 failed to properly evaluate the medical opinions of record in accordance with the 24 prevailing rules and regulations. 25 2. The ALJ’s Step 5 determination is unsupported by substantial evidence as there are clear discrepancies between the job descriptions and the limitations set forth in 26 the RFC. 27 3. The ALJ failed to include work-related limitations in the RFC consistent with the nature and intensity of Plaintiff’s limitations and failed to offer any reason for 28 1 rejecting Plaintiff’s subjective complaints. 2 (ECF No. 13, p. 2). 3 Having reviewed the record, administrative transcript, parties’ briefs, and the applicable 4 law, the Court finds as follows. I. ANALYSIS 5 A. Medical Opinions 6 The Court first turns to Plaintiff’s argument that the RFC is not supported by substantial 7 evidence because the ALJ erred in considering the opinion of the psychiatric consultative 8 examiner, Dr. DeBattista. Plaintiff challenges the following RFC assessed by the ALJ: 9 After careful consideration of the entire record, the undersigned finds that the 10 claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: he is able to 11 perform simple, routine, and repetitive tasks but not at a production rate or pace (e.g. assembly line work); he is able to perform simple work-related decisions; he 12 is able to tolerate few changes in a routine work setting defined as performing the 13 same duties at the same station or location day-to-day; he can have occasional interaction with supervisors; he can have occasional contact with coworkers with 14 no tandem tasks or team type activities; and he can have no contact with the public. 15 (AR 19). 16 Because Plaintiff applied for benefits in 2019, certain regulations concerning how ALJs 17 must evaluate medical opinions for claims filed on or after March 27, 2017, govern this case. 20 18 C.F.R. §§ 404.1520c, 416.920c. (AR 21). These regulations set “supportability” and 19 “consistency” as “the most important factors” when determining an opinion’s persuasiveness. 20 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). And although the regulations eliminate the “physician 21 hierarchy,” deference to specific medical opinions, and assignment of specific “weight” to a 22 medical opinion, the ALJ must still “articulate how [he or she] considered the medical opinions” 23 and “how persuasive [he or she] find[s] all of the medical opinions.” 20 C.F.R. §§ 404.1520c(a)- 24 (b); 416.920c(a)-(b). 25 As for the case authority preceding the new regulations that required an ALJ to provide 26 clear and convincing or specific and legitimate reasons for rejecting certain medical opinions, the 27 Ninth Circuit has concluded that it does not apply to claims governed by the new regulations: 28 The revised social security regulations are clearly irreconcilable with our caselaw 1 according special deference to the opinions of treating and examining physicians on account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) 2 (“We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . ., including those from your medical 3 sources.”). Our requirement that ALJs provide “specific and legitimate reasons” 4 for rejecting a treating or examining doctor’s opinion, which stems from the special weight given to such opinions, see Murray, 722 F.2d at 501–02, is likewise 5 incompatible with the revised regulations. Insisting that ALJs provide a more robust explanation when discrediting evidence from certain sources necessarily 6 favors the evidence from those sources—contrary to the revised regulations. 7 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Accordingly, under the new regulations, 8 “the decision to discredit any medical opinion, must simply be supported by substantial 9 evidence.” Id. at 787. 10 In conjunction with this requirement, “[t]he agency must ‘articulate . . . . how persuasive’ 11 it finds ‘all of the medical opinions’ from each doctor or other source, 20 C.F.R. § 404.1520c(b), 12 and ‘explain how [it] considered the supportability and consistency factors’ in reaching these 13 findings, id. § 404.1520c(b)(2).” Woods, 32 F.4th at 792. Supportability means the extent to which a medical source supports the medical 14 opinion by explaining the “relevant . . . objective medical evidence. Id. 15 § 404.1520c(c)(1). Consistency means the extent to which a medical opinion is “consistent . . . with the evidence from other medical sources and nonmedical 16 sources in the claim. Id. § 404.1520c(c)(2). 17 Id. at 791-92. 18 Here, the ALJ discussed the opinion of Dr. DeBattista as follows: Dr. DeBattista opined that the claimant can complete one or two step instructions, 19 is unable to complete complex and detailed instructions, has moderate to marked 20 issues interacting with coworkers and the public, and moderate to marked issue with concentration. Also, the claimant has a moderate issue with attendance, and a 21 moderate to marked issue with supervisors (Exhibit B5F/4). The undersigned finds this opinion not persuasive. This is internally inconsistent with the findings from 22 the consultative examination. The claimant had good eye contact, no evidence of hallucinations, intact judgment, intact insight, and normal orientation. Also, as 23 noted in his function reports, the claimant can drive a car, handle his finances, and 24 make his own meals, which requires a modest level of concentration (Exhibits B6E & B10E). 25 (AR 22). 26 Plaintiff argues that the ALJ’s first reason for finding Dr. DeBattista’s opinion to be not 27 persuasive, i.e.., that the opinion was internally inconsistent with Dr. DeBattista’s own 28 1 examination findings, is legally insufficient because the ALJ “never properly discussed” the 2 examination findings, which “actually demonstrated Plaintiff had an abnormal mood; an 3 abnormal affect; could only recall one out of three objects after five minutes; made four errors on 4 the first seven serial three’s; and was unable to interpret a proverb.” (ECF No. 13, p. 8) (citing AR 476). However, elsewhere in the ALJ’s decision, the ALJ discussed Dr. DeBattista’s 5 examination of Plaintiff, specifically noting the examination findings as to Plaintiff’s “depressed 6 and anxious mood,” “constricted affect,” and “errors in his concentration and calculation test.” 7 (AR 20) (citing AR 476). Thus, the ALJ did not mischaracterize Dr. DeBattista’s examination 8 findings or ignore medical evidence from Dr. DeBattista that was favorable to Plaintiff. Holohan 9 v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (an ALJ cannot “selectively” rely on evidence 10 to find a claimant not disabled, while “ignor[ing]” evidence favorable to the claimant). While 11 Plaintiff argues the examination findings support a different conclusion, this at most amounts to 12 another “rational interpretation,” meaning that “the decision of the ALJ must be upheld.” Orteza 13 v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). 14 Plaintiff also argues that the ALJ did not address how Dr. DeBattista’s opinion was 15 consistent with the opinion of the state agency psychological consultant as “all providers opined 16 Plaintiff [should be limited] to simple one to two step instructions.” (ECF No. 13, p. 9). However, 17 the ALJ found the Disability Determination Service (DDS) evaluation of Plaintiff to be only 18 partially persuasive: 19 [T]he Disability Determination Service (DDS) conducted an initial evaluation of the claimant. They opined that the claimant has severe mental health impairments. 20 In addition, they found that the claimant has moderate limitations in all four domains of the "paragraph B" criteria. They opined that the claimant has moderate 21 limitation with detailed instructions, working around others, completing a normal 22 workweek, interacting with the public, interacting with coworkers, responding to changes in the workplace, setting realistic goals, and being aware of normal 23 hazards (Exhibit B2A). On reconsideration, DDS added that the claimant was capable of completing one to two step tasks (only), can maintain concentration, 24 persistence, and pace, can adapt, and relate to others (Exhibit B4A). The undersigned finds [this] opinion partially persuasive. As noted above, the claimant 25 has nightmares and panic attacks. The claimant has endorsed hallucinations. The 26 claimant also has had depressed and anxious mood with constricted affect. In addition, the claimant has endorsed improvement taking his medication with no 27 side effects. Additionally, the claimant reported that he uses marijuana daily (See exhibits B1F, B3F, B5F, B7F, B10F, and B12F, supra). These findings in the 28 1 objective medical evidence generally support most of the DDS opinion that the claimant has moderate limitations. However, on reconsideration, DDS added that 2 the claimant is limited to one to two step tasks. This is a vague, non- vocationally relevant term as it does not explain the difference between one to two step 3 instructions as compared to the more precise limitation of "simple instructions." 4 Also, DDS stated that the claimant can adapt, maintain concentration, and relate to others. This seems to be internally consistent with their opinion that the claimant 5 has moderate limitations in detailed instructions, paying attention, interacting with others, and adjusting to changes in the workplace. Therefore, the overall DDS 6 opinion is partially persuasive as it is mostly (not completely) supported by the 7 objective medical evidence. (AR 21-22). 8 The ALJ endorsed and found persuasive the DDS opinions that Plaintiff had moderate 9 limitations in all four “paragraph B” criteria: 1) understanding, remembering, or applying 10 information; 2) interacting with others; 3) concentrating, persisting or maintaining pace; and 4) 11 adapting or managing oneself. (AR 18-19). However, the ALJ specifically did not endorse the 12 second DDS opinion that Plaintiff be limited to “one to two step tasks.”1 In discussing the DDS 13 opinions, the ALJ identified two ways in which the limitation to “one to two step tasks” was 14 internally inconsistent.2 First, the DDS consultant did not account for the difference between the 15 limitation to one to two step instructions and the DDS consultant’s other findings that Plaintiff is 16 “[n]ot significantly limited” in “[t]he ability to understand and remember very short and simple 17 instructions” and “[t]he ability to carry out very short and simple instructions.” (Compare AR 100 18 19 1 The Court notes that Plaintiff does not argue that the ALJ erred in considering the DDS opinions or advance any argument that the ALJ’s reasons for partially discounting the DDS opinions were 20 insufficient. Plaintiff merely argues that the ALJ failed to discuss how the opinions were consistent with one another with respect to the limitation to one to two step instructions. (See ECF 21 No. 13, p. 9). 2 The ALJ also stated the one to two step instruction was “a vague, non-vocationally relevant term 22 because it does not explain the difference between one to two step instructions as compared to the 23 more precise limitation of ‘simple instructions.’” The Court notes that a limitation to one to step instructions is not a vague term that is irrelevant to vocational findings. The Court disagrees with 24 this statement, as a limitation to one to step instructions is not a vague term that is irrelevant to vocational findings. See Sally C. v. Comm’r, Soc. Sec. Admin., No. 6:19-cv-1262-MO, 2023 WL 25 6891386, at *3 (D. Ore. Oct. 19, 2023) (“There is nothing vague, however, about a medical opinion that limits a claimant to one-and two-step tasks; this is common parlance of state medical 26 examiners that fill out disability determination explanations for social security claimants.”). 27 However, as discussed above, the relevant DDS opinion also stated that Plaintiff was not significantly limited as to “simple instructions.” The ALJ correctly identified that the DDS 28 opinion failed to explain this inconsistency. 1 (“[claimant] is capable of understanding, remembering, and carrying out simple 1-2 step task” 2 with AR 96-97 (rating Plaintiff’s understanding and memory limitations) and AR 97 (rating 3 Plaintiff’s concentration and persistence limitations)). Second, the ALJ noted the limitation to 4 one-to-step instructions was not consistent with the DDS consultant’s findings that Plaintiff is “[n]ot significantly limited” in his “ability to maintain attention and concentration for extended 5 periods” and only “[m]oderately limited” in his “ability to understand and remember detailed 6 instructions” and “carry out detailed instructions.” (AR 97). The ALJ’s reasoning as to the 7 inconsistency of the DDS opinion is legally sufficient. See Ford v. Saul, 950 F.3d 1141, 1155 (9th 8 Cir. 2020) (“An ALJ is not required to take medical opinions at face value, but may take into 9 account the quality of the explanation when determining how much weight to give 10 a medical opinion.”). Similarly, the ALJ did not endorse Dr. DeBattista’s opinion that Plaintiff 11 can only “complete one or two step instructions” and “is unable to complete complex and detailed 12 instructions” because it was internally inconsistent and not supported by third-party reports of 13 Plaintiff’s activities. Although Dr. DeBattista’s opinion and the second DDS opinion are 14 consistent to one another on this one point, the ALJ provided valid reasons for the weight given to 15 them due to their internal inconsistencies. 16 Further, the ALJ also noted that Dr. DeBattista’s opinion was at odds with the third-party 17 function reports of Plaintiff’s sister in 2020 and 2021, which noted that Plaintiff performed 18 activities requiring concentration such as driving, handling his own finances, and preparing his 19 own meals. (AR 22) (citing AR 280-290, 302-312). This reasoning evokes the supportability 20 factor. While Plaintiff contends the ALJ errs by relying on infrequent and isolated instances of 21 improvement, (ECF No. 13, p. 8), Plaintiff does not otherwise challenge the ALJ’s consideration 22 of the third-party function reports or argue that the ALJ may not consider the reports. Indeed, 23 “testimony from lay witnesses who see the claimant every day is of particular value,” Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996), and constitutes “competent evidence that an ALJ 24 must take into account, unless he or she expressly determines to disregard such testimony[.]” 25 Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). See also Ghanim v. Colvin, 763 F.3d 1154, 26 1162 (9th Cir. 2014) (noting that a conflict between daily activities and medical opinion may 27 justify discounting medical opinion). 28 1 Accordingly, the Court finds that the ALJ provided legally sufficient reasons to discount 2 the opinion of Dr. DeBattista. 3 B. Subjective Symptom Testimony 4 Plaintiff argues the ALJ erred by merely summarizing the treatment records that detailed Plaintiff’s reported symptoms and only mentioning Plaintiff’s testimony when addressing the 5 “paragraph B” criteria. (ECF No. 13, p. 12). 6 As to a plaintiff’s subjective complaints, the Ninth Circuit has concluded as follows: 7 Once the claimant produces medical evidence of an underlying impairment, the 8 Commissioner may not discredit the claimant’s testimony as to subjective symptoms merely because they are unsupported by objective evidence. Bunnell v. 9 Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Cotton v. Bowen, 10 799 F.2d 1403, 1407 (9th Cir. 1986) (“it is improper as a matter of law to discredit excess pain testimony solely on the ground that it is not fully corroborated by 11 objective medical findings”). Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner’s reasons for rejecting the claimant’s 12 testimony must be “clear and convincing.” Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). General findings are insufficient; rather, the ALJ must identify 13 what testimony is not credible and what evidence undermines the claimant’s 14 complaints. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996). 15 However, “[t]he standard isn’t whether [the] court is convinced, but instead whether the 16 ALJ’s rationale is clear enough that it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 17 489, 499 (9th Cir. 2022). An ALJ’s reasoning as to subjective testimony “must be supported by 18 substantial evidence in the record as a whole.” Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 19 1995); see Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) 20 (“Accordingly, our next task is to determine whether the ALJ’s adverse credibility finding of 21 Carmickle’s testimony is supported by substantial evidence under the clear-and-convincing 22 standard.”). 23 Here, the ALJ extensively discussed Plaintiff’ subjective complaints when determining 24 Plaintiff’s “paragraph B” criteria: 25 In understanding, remembering or applying information, the claimant has a moderate limitation. The claimant has a high school education. The record shows 26 that the claimant filed an adult function report. He said that he has difficulty 27 staying on task. He said that he can handle his finances. He said he has difficulty understanding, and following instructions. He said he can only pay attention for 28 three minutes (Exhibit B1E). In the objective medical evidence, it was noted, 1 during an examination, that the claimant had cooperative behavior. The claimant had normal cognition. The claimant had normal orientation and organized thought 2 process. The claimant had anxious and depressed mood. The claimant had average intelligence (Exhibit B7F/17). 3 In interacting with others, the claimant has a moderate limitation. The claimant 4 filed an adult function report indicating that he has difficulty staying on task, but that he can also shop at the store (Exhibit B1E). The record shows several 5 notations that the claimant suffers from panic attacks (Exhibit B12F/3). A licensed 6 clinical social worker said that the claimant has no social life or job due to his disability (Exhibit B12F/4). During an examination in December 2021, it was 7 noted that the claimant was having nightmares. It was noted that the claimant reported panic attacks three times a day (Exhibit B12F/21). However, during a 8 February 2021 consultative examination, the claimant presented as casually and neatly groomed with good eye contact (Exhibit B5F/3). Additionally, the claimant 9 testified that he sometimes stops at the grocery store on Fridays after medical 10 appointments, demonstrating that he does not require complete isolation from others (Hearing Testimony). 11 With regard to concentrating, persisting or maintaining pace, the claimant has a 12 moderate limitation. The claimant filed an adult function report and reported that he has difficulty staying on task. The claimant said that he can make meals and 13 complete some housework. He said that he can drive a car, an activity that requires sustained concentration, and can go shopping at the store. He also said that he can 14 handle his finances. He said he has difficulty understanding, and following instructions. He said he can only pay attention for three minutes (Exhibit B1E). 15 During an examination in July 2021, the claimant had cooperative behavior, 16 normal motor activity, normal orientation, and organized thought processes. The claimant endorsed hallucinations, but denied suicidal and homicidal ideation. The 17 claimant was anxious. The claimant had normal insight and normal judgment. The claimant had average intelligence (Exhibit B7F/5-6). At the hearing, he testified 18 that he drives to appointments and sometimes to the grocery store after 19 appointments (Hearing Testimony). As for adapting or managing oneself, the claimant has experienced a moderate 20 limitation. The claimant filed an adult function report. He said that he has difficulty staying on task. He said that his mental health symptoms inhibit his 21 ability to tend to his personal care. He said he can only pay attention for three 22 minutes (Exhibit B1E). During an examination, the claimant was well groomed. The claimant reported having nightmares (Exhibit B3F/43). During another 23 examination, the claimant made good eye contact. The claimant had normal speech. The claimant had depressed affect and anxious mood. The claimant had 24 constricted affect as well (Exhibit B5F/3). The claimant testified that he is able to 25 drive, grocery shop independently and fix microwave meals (Hearing Testimony). (AR 18-19) (footnote omitted). 26 As to Plaintiff’s subjective complaints, the ALJ concluded that Plaintiff’s “medically 27 determinable impairments could reasonably be expected to cause some of the alleged symptoms.” 28 1 (AR 21). Accordingly, because there is no affirmative evidence showing that Plaintiff was 2 malingering, the Court looks to the ALJ’s decision for clear and convincing reasons, supported by 3 substantial evidence, for not giving full weight to Plaintiff’s symptom testimony. 4 In formulating the RFC, the ALJ noted Plaintiff’s subjective complaints but discounted their degree of severity: 5 Therefore, the undersigned has determined that the claimant has severe 6 impairments, which cause functional limitations. However, the objective medical 7 evidence does not support the severity of the claimant's allegation that he is incapable of working. The claimant filed an adult function report. He said that he 8 has difficulty staying on task. He said that his mental health symptoms inhibit his ability to tend to his personal care. The claimant said that he can make meals and 9 complete some housework. He said that he can drive a car and can go shopping at the store. He also said that he can handle his finances. He said he has difficulty 10 understanding, and following instructions. He said he can only pay attention for 11 three minutes (Exhibit B1E). When he filed for disability, the claimant alleged that his anxiety disorder and panic attacks had limited his ability to work (Exhibit 12 B4E). The claimant completed another adult function report. He added that he has difficulty with his memory and with his concentration (Exhibit B5E). The 13 claimant’s sister completed two third-party function reports and stated that the claimant is functionally limited (Exhibits B6E & B10E). The undersigned 14 considered these reports, but viewed them within the context of the entire record, 15 including the medical reports. While the undersigned accepts that the claimant is functionally limited, these reported observations do not alone support a conclusion 16 that the claimant is incapable of working within the constraints of the established residual functional capacity assessment. The claimant testified that he lives with 17 his brothers. He said that he is home alone during the day while his brothers work. He said he drives himself to his doctor's appointments and also goes to the grocery 18 store. He said that he sometimes exhibits a panic attack at the grocery store and 19 leaves. The claimant testified he has a hard time leaving the house. He said that he takes his medication. He said that he watches movies with his cousin. He said that 20 he will cut the grass and also handle his finances. 21 As noted above, the claimant has endorsed nightmares and panic attacks. The claimant has endorsed hallucinations. The claimant also has had depressed and 22 anxious mood with constricted affect. In addition, the claimant has endorsed improvement taking his medication with no side effects. The claimant has never 23 been hospitalized for his panic attacks. Even though he has alleged several times he has difficulty leaving his home, the claimant goes to the doctor and to the 24 grocery store. The claimant is able drive his car, an activity that requires sustained 25 concentration. The claimant testified that he lives with his brothers. He said he watches movies with his cousin. The claimant also makes meals and can handle 26 his finances. The objective medical evidence and the claimant's own admissions support that he is capable of a modest level of activity in his home and outside of 27 his home. He testified that his medication makes him dizzy, but the objective 28 medical evidence noted that he was not having any medication side effects (See 1 exhibits B1F, B3F, B5F, B7F, B10F, and B12F, supra). In viewing the evidence in the light most favorable to the claimant, the residual functional capacity has 2 addressed the claimant's condition by limiting him to simple tasks, simple decisions, and limited contact with others. No single factor mentioned is 3 conclusive on the issue to be determined, but when viewed in combination, and in 4 conjunction with the medical history and examination findings, they suggest that the claimant is not as limited as is alleged. For all the foregoing reasons, the 5 undersigned concludes that since the date of alleged onset of disability the claimant has been able to perform a range of work consistent with the residual 6 functional capacity as assessed. 7 (AR 22-23). 8 The ALJ’s robust discussion of Plaintiff’s subjective complaints is contrary to Plaintiff’s 9 assertion that the ALJ provided only a vague summary of the medical evidence that “offers no 10 findings or conclusion as to what evidence undermines which portions of Plaintiff’s alleged 11 limitations.” (ECF No. 13, p. 12) Such discussion shows that the ALJ considered Plaintiff’s 12 subjective complaints but ultimately did not find them to cause disabling symptoms because of 13 evidence on record inconsistent with Plaintiff’s allegations of disability, including examination records noting Plaintiff’s cooperative behavior, normal cognition, and normal orientation and 14 organized thought process. (AR 18) (citing AR 528, 516-17). Carmickle, 533 F.3d at 1161 15 (“Contradiction with the medical record is a sufficient basis for rejecting the claimant’s subjective 16 testimony.”). Moreover, the ALJ noted that although Plaintiff alleges that “he has difficulty 17 leaving his home, the claimant goes to the doctor and to the grocery store.” (AR 23). Elsewhere in 18 the record, the ALJ also noted that the medical evidence did not substantiate Plaintiff’s claimed 19 agoraphobia. (AR 20-21) (citing AR 516-17). Although the lack of supporting evidence cannot be 20 the sole basis to discount testimony, it can be a factor. See Rollins v. Massanari, 261 F.3d 853, 21 857 (9th Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole ground that 22 it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant 23 factor in determining the severity of the claimant’s pain and its disabling effects.”) 24 Further, the ALJ discounted Plaintiff’s subjective complaints regarding his inability to 25 work based on Plaintiff’s reported activities of driving, going to the doctor and grocery store, 26 watching movies with his cousin, managing his finances, and preparing his own meals. See Burch 27 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“[I]f a claimant engages in numerous daily 28 activities involving skills that could be transferred to the workplace, the ALJ may discredit the 1 claimant’s allegations upon making specific findings relating to those activities.”). Here, the 2 ALJ's interpretation was rational, and the ALJ’s decision must be upheld “where the evidence is 3 susceptible to more than one rational interpretation.” Id. at 680-81 (9th Cir. 2005) (internal 4 citations omitted). Lastly, the ALJ also considered Plaintiff’s reported improvement with medication. See 5 Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (noting that 6 improvement is a factor that can be considered for purposes of whether a claimant is disabled). 7 Thus, the Court concludes that the ALJ provided legally sufficient reasons to reject 8 Plaintiff’s subjective complaints. 9 C. Step Five 10 Plaintiff argues that the ALJ’s Step Five determination that Plaintiff could perform work 11 as a hand packager (DOT 920.587-018), industrial cleaner (DOT 3381.687-018), and machine 12 packer (DOT 920.685-078) conflicts with the ALJ’s RFC, which limited Plaintiff to simple, 13 routine, and repetitive tasks. (ECF No. 13, p.10). According to Plaintiff, because these jobs 14 require Level 2 reasoning, they are “not compatible with a limitation to non-complex work.” (Id.) 15 Defendant argues that a limitation to “simple and routine tasks” is not incongruous to DOT 16 occupations requiring Level 2 reasoning. (ECF No. 17, p. 16). 17 At step five, the ALJ must determine whether there are jobs available for the claimant in 18 the national economy considering the claimant’s age, education, work experience, and residual 19 functional capacity. See 20 C.F.R. § 416.920(a)(4)(v). Specifically, the burden shifts to the 20 agency to prove that “the claimant can perform a significant number of other jobs in the national 21 economy.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). To meet this burden, the ALJ 22 may consider testimony from a vocational expert regarding the jobs a claimant can perform 23 despite their limitations. Gutierrez v. Colvin, 844 F.3d 804, 806-7 (9th Cir. 2016) (citing Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012)). “The Dictionary of Occupational Titles, a resource 24 compiled by the Department of Labor that details the specific requirements for different 25 occupations, guides [this] analysis.” Gutierrez, 844 F.3d at 807. The Ninth Circuit has held that 26 “[w]hen there is an apparent conflict between the vocational expert’s testimony and the DOT— 27 for example, expert testimony that a claimant can perform an occupation involving DOT 28 1 requirements that appear more than the claimant can handle—the ALJ is required to reconcile the 2 inconsistency.” Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015). 3 The Dictionary of Occupation Titles defines Level 2 reasoning as the ability to “[a]pply 4 commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized 5 situations.” DOT, App. C, 1991 WL 688702. In Zavalin, the Ninth Circuit noted that a limitation 6 to simple repetitive tasks appears to be consistent with Level 2 reasoning. 778 F.3d at 847 (citing 7 Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005)). Further, numerous district courts 8 have held that the ability to perform simple, routine, and repetitive tasks is equivalent to Level 2 9 reasoning. See Gill v. Comm’r of Soc. Sec., No. 1:22-cv-01625-SAB, 2024 WL 1160500, at *14 10 (E.D. Cal. Mar. 18, 2024) (“[T]he Court finds no apparent conflict between Plaintiff's ability to 11 understand, remember and carry out simple instructions and make simple work-related decisions 12 as found in his RFC and jobs requiring Level 2 reasoning.”); Coleman v. Astrue, No. CV 10-5641 13 JC, 2011 WL 781930, at *5 (C.D. Cal. Feb. 28, 2011) (“The Court recognizes, as defendant 14 points out, that the weight of prevailing authority precludes a finding of any inconsistency 15 between a reasoning level of two and a mere limitation to simple, repetitive tasks or unskilled 16 work.”); Miller v. Kijakazi, No. CV-20-1725-PHX-MTL, 2021 WL 5768811, at *8 (D. Ariz. Dec. 17 6, 2021) (“A limitation to work involving only ‘simple tasks,’ ‘simple, repetitive tasks,’ or 18 ‘simple, routine, repetitive work,’ is consistent with the ability to perform Level 2 Jobs.”) (citing 19 Zavalin, 778 F.3d at 847); John B. v. Comm’r of Soc. Sec., No. C22-5910-BAT, 2023 WL 20 6845297, at * 4 (W.D. Wash. Oct. 17, 2023) (citing cases). 21 In arguing that remand is warranted, Plaintiff cites to Rounds v. Comm’r of Soc. Sec., 807 22 F.3d 996, 1003-1004 (9th Cir. 2015), which found a conflict between an RFC limiting claimant to 23 “performing one- and two-step tasks, and the demands of Level Two reasoning[.]” Id. at 1003. Here, however, Plaintiff’s RFC does not include a limitation to “one- and two-step tasks.” And 24 the Court has rejected Plaintiff’s argument that the ALJ erred in discounting Dr. DeBattista’s 25 opinion that Plaintiff is only able to “complete one or two step instructions” and “unable to 26 complete complex and detailed instructions.” Accordingly, the ALJ did not err at Step Five by 27 failing to resolved any conflict between the VE’s testimony, which was based on the ALJ’s 28 1 | hypothetical questions relating an individual with Plaintiff's same RFC, and the DOT definition 2 | of Level 2 reasoning. 3 | IL CONCLUSION AND ORDER 4 Based on the above reasons, the decision of the Commissioner of Social Security is 5 | affirmed. The Clerk of Court is directed to enter judgment in favor of the Commissioner of Social 6 Security and to close this case. IT IS SO ORDERED. 8 9 | Dated: __March 25, 2024 [spe ey □□ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13