Bernice Jeanette Aranda v. Carolyn W. Colvin

Filing 27

DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that Judgment be entered AFFIRMING the Commissioner's decision and DISMISSING this action, and it is further ORDERED that The Clerk of the Court file this Decision and Order and serve copies upon counsel for the parties. (wr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA
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Case No. 5:16-CV-00542 (VEB)

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BERNICE JEANETTE ARANDA,

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DECISION AND ORDER

Plaintiff,

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vs.

NANCY BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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I. INTRODUCTION

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In April of 2010, Plaintiff Bernice Jeanette Aranda applied for Supplemental

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Security Income and Disability Insurance benefits under the Social Security Act.
The Commissioner of Social Security denied the applications.1

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 On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The

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Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant
in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.

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DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB

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Plaintiff, by and through her attorneys, The Law Offices of Rohlfing and

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Kalagian, LLP, Marc V. Kalagian, Esq., of counsel, commenced this action seeking

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judicial review of the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§

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405 (g) and 1383 (c)(3).

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The parties consented to the jurisdiction of a United States Magistrate Judge.

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(Docket No. 11, 13, 25, 26). On February 9, 2017, this case was referred to the

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undersigned pursuant to General Order 05-07. (Docket No. 24).

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II. BACKGROUND

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Plaintiff applied for benefits on April 12, 2010, alleging disability beginning

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March 26, 2010. (T at 242-47, 248-49).2 The applications were denied initially and

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on reconsideration. Plaintiff requested a hearing before an Administrative Law

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Judge (“ALJ”).

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On October 17, 2011, a hearing was held before ALJ Milan Dostal. (T at 42).

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Plaintiff appeared with her attorney and testified. (T at 47-52). The ALJ also

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received testimony from Alan Boroskin, a vocational expert. (T at 52-57).

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On January 19, 2012, ALJ Dostal issued a written decision denying the

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applications for benefits. (T at 89-104). On July 18, 2013, the Appeals Council

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 Citations to (“T”) refer to the administrative record at Docket No. 18.
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DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB

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granted Plaintiff’s request for review and remanded the matter for further

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proceedings. (T at 105-110).

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A second administrative hearing was conducted by ALJ Sharilyn Hopson on

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March 24, 2014. (T at 60). Plaintiff appeared with her attorney and testified. (T at

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63-77).

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vocational expert. (T at 77-80).

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The ALJ also received additional testimony from Mr. Boroskin, the

ALJ Hopson issued a written decision on June 5, 2014, denying the

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applications for benefits. (T at 17-37).

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Commissioner’s final decision on February 12, 2016, when the Appeals Council

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ALJ Hopson’s decision became the

denied Plaintiff’s request for review. (T at 1-7).

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On March 24, 2016, Plaintiff, acting by and through her counsel, filed this

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action seeking judicial review of the Commissioner’s denial of benefits. (Docket No.

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1). The Commissioner interposed an Answer on September 6, 2016. (Docket No.

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17). The parties filed a Joint Stipulation on January 3, 2017. (Docket No. 23).

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After reviewing the pleadings, Joint Stipulation, and administrative record,

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this Court finds that the Commissioner’s decision must be affirmed and this case be

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dismissed.

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III. DISCUSSION
A.

Sequential Evaluation Process

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The Social Security Act (“the Act”) defines disability as the “inability to

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engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which has

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lasted or can be expected to last for a continuous period of not less than twelve

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months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a

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claimant shall be determined to be under a disability only if any impairments are of

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such severity that he or she is not only unable to do previous work but cannot,

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considering his or her age, education and work experiences, engage in any other

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substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),

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1382c(a)(3)(B). Thus, the definition of disability consists of both medical and

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vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

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The Commissioner has established a five-step sequential evaluation process

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for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step

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one determines if the person is engaged in substantial gainful activities. If so,

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benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the

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decision maker proceeds to step two, which determines whether the claimant has a

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medically severe impairment or combination of impairments. 20 C.F.R. §§

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404.1520(a)(4)(ii), 416.920(a)(4)(ii).

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If the claimant does not have a severe impairment or combination of

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impairments, the disability claim is denied. If the impairment is severe, the

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evaluation proceeds to the third step, which compares the claimant’s impairment(s)

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with a number of listed impairments acknowledged by the Commissioner to be so

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severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii),

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416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or

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equals one of the listed impairments, the claimant is conclusively presumed to be

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disabled. If the impairment is not one conclusively presumed to be disabling, the

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evaluation proceeds to the fourth step, which determines whether the impairment

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prevents the claimant from performing work which was performed in the past. If the

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claimant is able to perform previous work, he or she is deemed not disabled. 20

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C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual

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functional capacity (RFC) is considered. If the claimant cannot perform past relevant

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work, the fifth and final step in the process determines whether he or she is able to

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perform other work in the national economy in view of his or her residual functional

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capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v),

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416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).

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The initial burden of proof rests upon the claimant to establish a prima facie

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case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th

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Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden

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is met once the claimant establishes that a mental or physical impairment prevents

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the performance of previous work. The burden then shifts, at step five, to the

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Commissioner to show that (1) plaintiff can perform other substantial gainful

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activity and (2) a “significant number of jobs exist in the national economy” that the

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claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).

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B.

Standard of Review

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Congress has provided a limited scope of judicial review of a Commissioner’s

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decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision,

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made through an ALJ, when the determination is not based on legal error and is

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supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.

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1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

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“The [Commissioner’s] determination that a plaintiff is not disabled will be

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upheld if the findings of fact are supported by substantial evidence.” Delgado v.

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Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial

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evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119

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n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d

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599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson v.

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Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and

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conclusions as the [Commissioner] may reasonably draw from the evidence” will

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also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review,

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the Court considers the record as a whole, not just the evidence supporting the

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decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.

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1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).

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It is the role of the Commissioner, not this Court, to resolve conflicts in

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evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational

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interpretation, the Court may not substitute its judgment for that of the

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Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th

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Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be

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set aside if the proper legal standards were not applied in weighing the evidence and

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making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d

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432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the

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administrative findings, or if there is conflicting evidence that will support a finding

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of either disability or non-disability, the finding of the Commissioner is conclusive.

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Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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C.

Commissioner’s Decision

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ALJ Hopson determined that Plaintiff had not engaged in substantial gainful

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activity since March 26, 2010, the alleged onset date, and met the insured status

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requirements of the Social Security Act through June 30, 2014 (the “date last

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insured”). (T at 22). The ALJ found that Plaintiff’s posterior subcapsular/polar

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cataract in the left eye, myopia, astigmatism, presbyopia, degenerative

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macularedema, degenerative disc disease of the lumbar spine, nerve degeneration,

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minimal spondylosis, scoliosis, bilateral torn rotator cuffs, obesity, depression, and

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anxiety were “severe” impairments under the Act. (Tr. 22-23).

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However, the ALJ concluded that Plaintiff did not have an impairment or

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combination of impairments that met or medically equaled one of the impairments

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set forth in the Listings. (T at 23).

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The ALJ determined that Plaintiff retained the residual functional capacity

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(“RFC”) to occasionally lift/carry 20 pounds, frequently lift/carry 10 pounds,

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stand/walk for 6 hours in an 8-hour workday, sit for 6 hours in an 8-hour workday,

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frequently

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bend/stoop/kneel/crouch/crawl/twist, never work above shoulder level bilaterally,

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not be required to read or see anything smaller than 9 point print, and perform

climb

stairs,

never

climb

ladders/ropes/scaffolds,

occasionally

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moderately complex tasks with a Specific Vocational Preparation (SVP) score of 4

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or less. (T at 25).

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The ALJ concluded that Plaintiff could perform her past relevant work as a

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retail sales clerk. (T at 30). Accordingly, the ALJ determined that Plaintiff was not

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disabled within the meaning of the Social Security Act between March 26, 2010 (the

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alleged onset date) and June 5, 2014 (the date of the decision) and was therefore not

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entitled to benefits. (T at 31). As noted above, the ALJ’s decision became the

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Commissioner’s final decision when the Appeals Council denied Plaintiff’s request

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for review. (T at 1-7).

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D.

Disputed Issues

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As set forth in the Joint Stipulation (Docket No. 23, at p. 4), Plaintiff offers a

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single argument in support of her claim that the Commissioner’s decision should be

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reversed. She argues that the ALJ’s residual functional capacity determination is not

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supported by substantial evidence.

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IV. ANALYSIS

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An ALJ’s assessment of the claimant’s residual functional capacity (“RFC”)

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must be upheld if the ALJ has applied the proper legal standard and substantial

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evidence in the record supports the decision. Bayliss v. Barnhart, 427 F.3d 1211,

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DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB

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1217 (9th Cir. 2005). The ALJ must consider all the medical evidence in the record

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and “explain in [her] decision the weight given to . . . [the] opinions from treating

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sources, nontreating sources, and other nonexamining sources.” 20 C.F.R. §

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404.1527(e)(2)(ii); see also § 404.1545(a)(1).

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In determining the claimant’s RFC, the ALJ considers those limitations for

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which there is support in the record and need not consider properly rejected evidence

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or subjective complaints. See Bayliss, 427 F.3d at 1217; see also Batson v. Comm'r

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of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (holding that the ALJ was

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not required to incorporate into RFC findings from treating-physician opinions that

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were “permissibly discounted”).

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An ALJ satisfies the “substantial evidence” requirement by “setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating

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his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995,

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1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)).

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A.

Physical RFC

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In this case, the ALJ concluded that Plaintiff retained the RFC to, inter alia,

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stand and/or walk for 6 hours in an 8-hour workday. (T at 25). However, in June of

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2010, Dr. Joseph Hohl, a treating physician, opined that Plaintiff needed to “lead a

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very sedentary life.” (T at 427).

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In August of 2013, Dr. Hohl completed a
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DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB

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“checkbox” physical medical source statement, wherein he stated that Plaintiff could

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stand and/or walk for less than 2 hours in an 8-hour workday. (T at 526).

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In disability proceedings, a treating physician’s opinion carries more weight

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than an examining physician’s opinion, and an examining physician’s opinion is

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given more weight than that of a non-examining physician. Benecke v. Barnhart,

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379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

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1995). If the treating or examining physician’s opinions are not contradicted, they

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can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If

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contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons

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that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d

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1035, 1043 (9th Cir. 1995).

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The ALJ discounted Dr. Hohl’s opinions and concluded that Plaintiff’s

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physical RFC exceeded Dr. Hohl’s assessment, including his evaluation of

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Plaintiff’s ability to stand and walk. (T at 29). This Court finds the ALJ’s decision

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supported by substantial evidence.

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Dr. Hohl’s June 2010 letter indicating that Plaintiff needed to “lead a very

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sedentary life” (T at 427) relates to an issue reserved to the Commissioner and is,

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thus, not entitled to any special weight. See 20 C.F.R. §404.1527(d)(3), §

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404.1527(d)(1); SSR 96-5p, Ram v. Astrue, 2012 U.S. Dist. LEXIS 183742 (C.D.

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DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB

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Cal. Nov. 30, 2012) (“a treating physician's opinion regarding the ultimate issue of

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disability is not entitled to any special weight”); see also Tonapetyan v. Halter, 242

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F.3d 1144, 1149 (9th Cir. 2001).

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The ALJ reasonably concluded that Dr. Hohl’s “checkbox” physical medical

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source statement was conclusory and lacking in sufficient clinical and objective

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support. The ALJ is not obliged to accept a treating source opinion that is “brief,

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conclusory and inadequately supported by clinical findings.” Lingenfelter v. Astrue,

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504 F.3d 1028, 1044-45 (9th Cir. 2007) (citing Thomas v. Barnhart, 278 F.3d 947,

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957 (9th Cir. 2002)).

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Moreover, the ALJ outlined the treatment history, which consisted of

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generally unremarkable physical examinations (full range of motion, normal gait,

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normal motor strength/sensation/reflex) and mild or minor X-ray findings. (T at 29).

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The ALJ reasonably concluded that the treatment history was not consistent with the

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significant limitations assessed by Dr. Hohl. See Bayliss v. Barnhart, 427 F.3d

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1211, 1216 (9th Cir. 2005)(finding that “discrepancy” between treatment notes and

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opinion was “a clear and convincing reason for not relying on the doctor's opinion

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regarding” the claimant’s limitations).

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The ALJ’s RFC determination is also supported by the assessment of Dr. Anh

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Tat Hoang, an orthopedic specialist who performed a consultative examination in

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DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB

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February of 2011. Dr. Hoang opined that Plaintiff could, inter alia, stand and/or

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walk for 6 hour in an 8-hour workday. (T at 490).

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Plaintiff notes, correctly, that Dr. J. Hartman, a State Agency review

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physician, concluded that Plaintiff could stand/walk for “at least” 2 hours in an 8-

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hour workday, which arguably suggests greater limitation than assessed by the ALJ.

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(T at 30). However, the ALJ reasonably concluded that this non-examining opinion

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was inconsistent with the treatment record (which contained generally unremarkable

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clinical findings and X-ray results) and with the opinion of Dr. Hoang, who had the

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opportunity to examine Plaintiff in person.

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In sum, the record contains conflicting evidence concerning Plaintiff’s

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physical limitations. Plaintiff argues that the ALJ should have weighed the evidence

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differently and resolved the conflict in favor of Dr. Hohl’s more restrictive

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assessment. However, it is the role of the Commissioner, not this Court, to resolve

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conflicts in evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989);

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Richardson, 402 U.S. at 400. If the evidence supports more than one rational

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interpretation, this Court may not substitute its judgment for that of the

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Commissioner. Allen v. Heckler, 749 F.2d 577, 579 (9th 1984).

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substantial evidence to support the administrative findings, or if there is conflicting

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evidence that will support a finding of either disability or nondisability, the

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If there is

DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB

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Commissioner’s finding is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30

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(9th Cir. 1987). Here, the ALJ’s decision was supported by substantial evidence and

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must therefore be sustained. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

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1999)(holding that if evidence reasonably supports the Commissioner’s decision, the

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reviewing court must uphold the decision and may not substitute its own judgment).

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B.

Mental RFC

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As part of his step two and step three analysis, the ALJ concluded that

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Plaintiff had mild difficulties with social functioning and moderate difficulties with

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respect to maintaining concentration, persistence, or pace. (T at 24). The ALJ’s

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RFC determination indicates that Plaintiff retained the RFC to perform moderately

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complex tasks with a Specific Vocational Preparation (SVP) score of 4 or less, but

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contains no other limitations regarding Plaintiff’s ability to perform the mental

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demands of work-related activity. (T at 25). Plaintiff argues that these conclusions

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are contradictory and that the ALJ erred by failing to include the social and

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concentration/persistence/pace limitations in the RFC determination and in the

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hypothetical questions posed to the vocational expert.

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Plaintiff relies on the Ninth Circuit’s unpublished disposition in Hutton v.

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Astrue, 491 F. App’x 850, 851 (9th Cir. 2012), in which the court held that the ALJ’s

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DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB

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failure to consider the claimant’s mild mental limitations in determining RFC was

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legal error requiring remand.

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However, the ALJ in the present case, unlike the ALJ in Hutton, carefully

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considered the evidence related to Plaintiff’s mild mental impairments and, thus, did

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not commit reversible error in deciding not to incorporate them into the RFC

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determination or hypotheticals presented to the vocational expert.

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For example, the ALJ expressly stated that her RFC determination

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incorporated the social and concentration/persistence/pace limitations assessed at

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steps two and three. (T at 24). In particular, the ALJ noted that Plaintiff lives in an

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apartment with her husband, two daughters, and two grandchildren; she walks to the

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market with her grandchildren, performs household chores, talks on the telephone,

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and attends church. (T at 24, 29). She has sufficient concentration to drive, write

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emails, and read devotional literature. (T at 24). Plaintiff does not cite to evidence

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of mental health treatment or medical opinions suggesting that the mild to moderate

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limitations assessed by the ALJ impacted Plaintiff’s ability to perform work-related

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activities beyond the limitations already included in the RFC determination. Thus,

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this Court finds no error as to the ALJ’s conclusion that Plaintiff’s mild social

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difficulties and moderate limitations regarding concentration/persistence/pace were

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adequately considered and accounted for in the RFC determination.

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DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB

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In sum, the applicable Regulations require the ALJ to “consider” the limiting

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effect of all impairments, including those that are non-severe, but it does not require

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the ALJ in every case to “include” those limitations in the RFC determination and/or

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in the hypothetical questions presented to the vocational expert. See 20 CFR §

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404.1545 (e).

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“Provided the ALJ does not rely on boilerplate language, but actually reviews

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the record and specifies reasons supported by substantial evidence for not including

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the non-severe impairment [in the RFC determination], the ALJ has not committed

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legal error.” Medlock v. Colvin, No. CV 15-9609-KK, 2016 U.S. Dist. LEXIS

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145692, at *13 (C.D. Cal. Oct. 20, 2016).

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In other words, “[u]nlike the ALJ in Hutton, the ALJ in this case thoroughly

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considered the medical evidence related to Plaintiff's mild mental impairment at step

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four before choosing not to include the limitation in the RFC determination.

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Consequently, the ALJ's omission was not legal error.” Medlock, 2016 U.S. Dist.

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LEXIS 145692, at *14; see also Sisco v. Colvin, No. 13-01817, 2014 U.S. Dist.

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LEXIS 84614, *7-8 (N.D. Cal. June 20, 2014) (holding that ALJ was not required to

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include mental limitations in hypotheticals where ALJ determined that claimant’s

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mental impairments were “generally mild in nature” and imposed “no significant

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functional limitations”).

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DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB

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V. CONCLUSION

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After carefully reviewing the administrative record, this Court finds

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substantial evidence supports the Commissioner’s decision, including the objective

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medical evidence and supported medical opinions. The ALJ thoroughly examined

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the record, afforded appropriate weight to the medical evidence, including the

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assessments of the treating and examining medical providers and medical experts,

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and afforded the subjective claims of symptoms and limitations an appropriate

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weight when rendering a decision that Plaintiff is not disabled. This Court finds no

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reversible error and because substantial evidence supports the Commissioner’s

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decision, the Commissioner is GRANTED summary judgment and that Plaintiff’s

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motion for judgment summary judgment is DENIED.

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DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB

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VI. ORDERS
IT IS THEREFORE ORDERED that:
Judgment be entered AFFIRMING the Commissioner’s decision and
DISMISSING this action, and it is further ORDERED that
The Clerk of the Court file this Decision and Order and serve copies upon
counsel for the parties.
DATED this 8th day of August, 2017,

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/s/Victor E. Bianchini
VICTOR E. BIANCHINI
UNITED STATES MAGISTRATE JUDGE

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DECISION AND ORDER – ARANDA v BERRYHILL 5:16-CV-00542-VEB