Farinas v. Commissioner of Social Security

Filing 22

JUDGMENT and ORDER: (1) Adopting Report and Recommendation; (2) Denying Plaintiff's Motion for Summary Judgment; and (3) Granting Defendant's Cross-Motion for Summary Judgment [ECF No. 18 , 19 , 21 ]. Signed by Judge Gonzalo P. Curiel on 3/31/2021. (anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANUELA FARINAS, Case No.: 19-cv-1760-GPC-WVG Plaintiff, 12 13 v. 14 JUDGMENT AND ORDER: ANDREW SAUL, Commissioner of Social Security, 15 16 (1) ADOPTING REPORT AND RECOMMENDATION; Defendant. (2) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND 17 18 (3) GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 19 20 21 [ECF Nos. 18, 19, 21] 22 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act 23 (“Act”) seeking judicial review of the final administrative decision of the Commissioner 24 of the Social Security Administration (“Commissioner”), in which the decision denied 25 Plaintiff’s application for disability benefits under Title II of the Act (“Title II benefits”). 26 (ECF No. 1.) The parties filed summary judgment motions. (See ECF Nos. 18, 19.) On 27 28 1 19-cv-1760-GPC-WVG 1 February 3, 2021, Magistrate Judge William V. Gallo issued a report and 2 recommendation (“R&R”) recommending that Plaintiff’s motion for summary judgment 3 be denied and that Defendant’s cross-motion for summary judgment be granted. (ECF 4 No. 21.) Plaintiff did not file an objection. After considering all related documents, the 5 Court ADOPTS the R&R. Accordingly, the Court DENIES Plaintiff’s motion for 6 summary judgment and GRANTS Defendant’s cross-motion for summary judgment. 7 I. 8 9 BACKGROUND After reviewing the R&R and the Administrative Record, the Court recites the facts as substantially presented in the R&R,1 (ECF No. 21 at 4–11. 2) 10 A. 11 Plaintiff was born on March 10, 1963. (AR 1784. 3) In or around 2000, Plaintiff Plaintiff’s Medical Condition 12 worked as a caregiver. (See AR 1785.) Her job duties centered on providing patient 13 care. (Id.) Typical responsibilities included bathing, dressing, cooking for and feeding 14 patients, housekeeping, and cleaning. (Id.) Plaintiff’s position as a caregiver necessarily 15 involved physical activity, namely “sitting, standing, walking, bending, twisting, 16 reaching, pushing, pulling, lifting (100+ pounds), squatting, kneeling, climbing, crawling, 17 overhead-type work, keyboarding, grasping, and torquing [sic].” (Id.) 18 19 Throughout her years as a caregiver, Plaintiff experienced a series of injuries. Most, but not all of her injuries were job-related. In 2007, Plaintiff was rear-ended in a 20 21 22 23 24 25 26 27 28 Section II.A, infra, discusses the legal basis allowing the district court to assume the correctness of the magistrate judge’s findings. 1 References to specific page numbers in a document filed in this case correspond to the page numbers assigned by the Court’s Electronic Case Filing (“ECF”) system. However, page numbers in administrative records are annotated as discussed infra note 3. 2 When applicable, the Court cites directly to the page numbers in the Administrative Record (“AR”), ECF Nos. 12–13, in order to avoid any confusion or misinterpretation of the Administrative Law Judge’s (“ALJ”) findings on Plaintiff’s disability status. 3 2 19-cv-1760-GPC-WVG 1 car accident, which resulted in a neck injury. (AR 1791.) After Plaintiff went through 2 physical therapy, her symptoms fully resolved. (Id.) Since then, Plaintiff’s injuries arose 3 in the course of her employment. In 2009, Plaintiff reported experiencing pain in both of 4 her wrists as a result of carrying groceries for her patients. (Id.) In 2010, Plaintiff fell at 5 work, resulting in lower back pain. (Id.) After seeking and receiving treatment, 6 Plaintiff’s back issues resolved within two weeks. (Id.) 7 Most seriously, on or around January 4, 2011, Plaintiff suffered a workplace injury 8 while attempting to dress an elderly patient who weighed approximately 180 pounds. 9 (AR 1785.) As a result of her injury, Plaintiff reported “experiencing pain within both of 10 her shoulders, knees and hips as well as within her low back and head.” (Id.) Plaintiff’s 11 injury prompted her to seek treatment from Dr. Kenneth Romero, who had been treating 12 Plaintiff in his capacity as a pain specialist since September 2009. (See AR 1204, 1935.) 13 Plaintiff has not returned to work to any extent since June 15, 2011. (AR 1786.) 14 B. 15 Since at least 2011, Dr. Romero treated Plaintiff for numerous physical conditions Dr. Romero’s Treatment of Plaintiff and Medical Examinations 16 relating to bilateral arm pain, bilateral leg pain, right shoulder and back pain, and right 17 rotator cuff repair. (See AR 103.) Dr. Romero also treated Plaintiff for her mental 18 conditions, namely depression and generalized anxiety. (See id.) Dr. Romero’s findings 19 were addressed extensively in the Administrative Law Judge’s (“ALJ”) final decision on 20 September 5, 2018. (See AR 26, 29–31.) 21 22 1. Dr. Romero’s Progress Notes Between 2012 and 2016, Dr. Romero reported Plaintiff was responding well to the 23 prescribed medication for pain management and observed that Plaintiff’s condition 24 continued to improve. (See, e.g., AR 759, 801, 1125, 1235, 1261, 1747, 1750.) Further, 25 as to Plaintiff’s lower back and bilateral knee pain stemming from her 2011 workplace 26 injury, Dr. Romero conducted ongoing physical examinations and documented 27 28 3 19-cv-1760-GPC-WVG 1 observations such as mild to moderate tenderness, and normal strength and gait. (See, 2 e.g., AR 584–85, 609–10, 714–15, 720, 730, 736–37, 741–42, 746–47, 1112, 1117, 1127, 3 1133, 1144.) 4 Additionally, Dr. Romero assessed the state of Plaintiff’s mental health on an 5 ongoing basis. Dr. Romero’s progress notes reflected that Plaintiff “has no difficulty 6 focusing on a subject,” and “no complaints of dizziness or vertigo.” (AR 25–26.) Dr. 7 Romero’s notes also indicated a normal CT scan of Plaintiff’s head in August 2015, and 8 discussed her ability to “attend to and follow commands normally and with intact 9 memory.” (Id.) In 2015, Plaintiff was also “exercising by walking half a mile to one 10 mile three times a week.” (AR 31.) Finally, Dr. Romero’s notes expressed that, despite 11 Plaintiff’s disabling condition, Plaintiff “[took] a number of trips, primarily to Mexico 12 that involve[d] taking the bus which [could] last up to 9 hours,” and “even able to make 13 the international trip to the Philippines where she stayed for 3 months.” (AR 29–30.) 14 2. 15 Dr. Romero’s Treating Source Statement On April 28, 2016, Dr. Romero drafted and signed a Treating Source Statement. 16 In it, he concluded that Plaintiff was limited in her ability to work due to lower back and 17 leg pain. Specifically, Dr. Romero found that Plaintiff: 18 (1) would be off work 25 percent of the time due to trouble concentrating; 19 (2) would miss more than four days of work per month; 20 (3) could occasionally lift, but no more than 20 pounds, or else the 21 lifting/carrying would worsen Plaintiff’s lower back pain; 22 (4) could sit four hours per day, and stand or walk three hours per day; 23 (5) required a sit/stand option at work; 24 (6) could frequently reach in all directions; 25 (7) could occasionally push and pull with the bilateral upper extremities; 26 27 28 /// 4 19-cv-1760-GPC-WVG 1 (8) 2 could occasionally climb ramps and stairs, but never climb ladders and scaffolds; 3 (9) 4 (10) could never crawl; 5 (11) could occasionally operate a motor vehicle; 6 (12) could occasionally be exposed to extreme temperatures; and 7 (13) could never be exposed to unprotected heights, pulmonary irritants, and 8 9 could rarely balance, stoop, kneel, or crouch; vibrations. (See AR 1204–07.) 10 C. Statement by Dr. Levine, Examining Physician 11 As part of a worker’s compensation dispute in state court due to the workplace 12 injury that occurred around January 4, 2011, Plaintiff also went through a physical and 13 mental examination with Dr. Sidney Levine. On March 12, 2012, Dr. Levine prepared an 14 Initial Chart Note. In it, Dr. Levine stated Plaintiff “is disabled from carrying out her 15 regular work activities.” (AR 1796). 16 D. The Initial ALJ Decision and Remand 17 On November 15, 2013, Plaintiff filed an application for Title II benefits, alleging 18 disability commencing June 15, 2011. (See AR 158.) After her application was denied 19 initially and again upon reconsideration, (see AR 186–87), Plaintiff requested an 20 administrative hearing. (See AR 192–98.) On September 19, 2016, the ALJ found that 21 Plaintiff was not disabled within the meaning of Title II. (See AR 158–68.) 22 23 24 Plaintiff appealed, and on July 31, 2017, the Appeals Council vacated the ALJ’s decision and remanded Plaintiff’s case to the ALJ for resolution of three specific issues: (1) “The hearing decision indicates that the claimant has severe mental 25 impairments, but does not contain rationale for B and C criteria rated using 26 the special technique described in 20 CFR 404.1520a.”; 27 28 5 19-cv-1760-GPC-WVG 1 (2) “The residual functional capacity should address the claimant’s maximum 2 ability to perform work related activities such as her ability to perform 3 simple, detailed, and complex tasks (Social Security Rule 96-8p).”; and 4 (3) “On April 26, 2016, approximately a month prior to the hearing, 736 pages 5 [of] medical records document was submitted into the F section of the 6 electronic file. The Administrative Law Judge did not enter this evidence 7 into the record, consider it, or label it as duplicative.” 8 (See AR 174–76.) 9 E. 10 The Final ALJ Decision On remand, the ALJ convened a hearing on March 29, 2018 regarding Plaintiff’s 11 case. (See AR 21, 42–70.) On September 5, 2018, the ALJ issued his final decision, 12 ultimately concluding that Plaintiff was not disabled within the meaning of Title II of the 13 Act. After first concluding that “[t]he claimant last met the insured status requirements 14 of the Social Security Act on December 31, 2016,” (AR 24,) the ALJ performed a five- 15 step sequential evaluation to determine whether Plaintiff was disabled pursuant to 20 16 C.F.R. § 404.1520(a)(4).4 17 On step one: “The claimant did not engage in substantial gainful activity during the 18 period from her alleged onset date of June 15, 2011 through her date last insured of 19 December 31, 2016 (20 CFR 404.1571 et seq.).” (AR 24.) 20 On step two: “Through the date last insured, the claimant had the following severe 21 impairments: degenerative disc disease of the lumbar spine; status post bilateral shoulder 22 surgeries with residual bilateral shoulder pain; major depressive disorder; and post- 23 traumatic stress disorder (PTSD) (20 CFR 404.1520(c)).” (AR 24.) In so finding, the 24 ALJ cited to the evidentiary record as follows: 25 26 27 28 4 A discussion on what each step entails may be found infra pages 13–14 of this Order. 6 19-cv-1760-GPC-WVG 1 2 • “Examinations show normal range of motion of the hips with no neurological deficits.”; 3 • “No severe hip impairment is established.”; 4 • “Neurologist Edward Friedman, M.D., who evaluated the claimant in May 2014 5 did not find evidence of any neurological disorder and opined that there was no 6 evidence to warrant further neurological testing. No severe neurological 7 impairment is established in connection with these complaints.”; 8 9 • “MRI scans of the cervical spine in August 2012 and April 2014 were completely normal. CT scan of the cervical spine in August 2015 was normal. 10 Examinations of the cervical spine have been mostly normal other than some 11 reduced range of motion with tenderness[,] and paraspinal muscle spasms on 12 rare occasions.”; 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • “MRI scan of the left knee in May 2012 was normal. X-ray of the left knee in November 2012 was negative. MRI of the left knee in September 2012 was only remarkable for chondromalacia of the medical margin of the patella. MRI of the right knee in May 2012 was normal. Examinations of the knees reveal full range of motion of the knees. No severe knee impairment is established by the record.”; • “EMG/NCV [electromyography and nerve conduction velocity] testing in July 2012 was normal with no evidence of carpal tunnel syndrome. Further, the claimant has been consistently neurologically intact. This is not a severe impairment.”; • “MRI scan of the left elbow in September 2012 showed mild distal triceps tendinopathy.”; • “Attending physician Romero documented no complaints of dizziness or vertigo. CT scan of [Plaintiff’s] head in August 2015 was normal. Neurologist 7 19-cv-1760-GPC-WVG 1 Edward Friedman, M.D., who evaluated the claimant in May 2014 did not find 2 evidence of any neurological disorder and opined that there was no evidence to 3 warrant further neurological testing. No severe neurological impairment is 4 established in connection with the complaints of vertigo and dizziness.”; 5 • “There is no evidence of continued alcohol abuse. Therefore, her history of 6 alcohol abuse, in reported full remission, is not a severe impairment.”; and 7 finally, 8 9 10 11 • “There are no records that indicate that the claimant’s asthma had been a significant problem requiring ongoing or regular treatment. Examinations of her lungs have been normal. Her asthma is not a severe impairment.” (AR 24–25 (internal references to evidentiary exhibits omitted).) 12 On step three: “Through the date last insured, the claimant did not have an 13 impairment or combination of impairments that met or medically equaled the severity of 14 one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 15 404.1520(d), 404.1525 and 404.1526).” In so finding, the ALJ cited to the evidentiary 16 record as follows: 17 • “In understanding, remembering, or applying information, the claimant had a 18 mild limitation. Progress notes from attending physician Romero show that the 19 claimant is able to attend to and follow commands normally and with intact 20 memory. Mental status examinations from PsyCare and Dr. Chavez show that 21 the clamant has been mostly cognitively intact since he began treating the 22 claimant in 2011, except for some visits in which he noted poor memory. This 23 limitation is consistent with the opinion of Dr. Nicholson [a physician who 24 conducted a consultative psychiatric evaluation of Plaintiff].”; 25 26 27 28 • “In interacting with others, the claimant had a mild limitation. This limitation is consistent with the opinion of Dr. Nicholson. The record shows that even with 8 19-cv-1760-GPC-WVG 1 the claimant’s physical and mental impairments, she has a fairly good support 2 network consisting of her immediate family, relative, and friends.”; 3 • “With regard to concentrating, persisting, or maintaining pace, the claimant had 4 a moderate limitation. Progress notes from Dr. Romero show that the claimant 5 has no difficulty focusing on a subject. Mental status examinations from 6 PsyCare and Dr. Chavez show that claimant has been mostly cognitively intact 7 since he began treating claimant in 2011, except for some visits in which he 8 noted poor concentration. While Dr. Nicholson opined that the claimant has a 9 mild limitation in this domain, I have given the claimant the benefit of the doubt 10 and found a moderate limitation is indicated when considering the combined 11 effects of her depression, anxiety, and chronic pain.”; and, finally, 12 • “As for adapting or managing oneself, the claimant had experienced a moderate 13 limitation[,] . . . one inpatient psychiatric hospitalization in July 2014. 14 However, mental health treatment records show that the claimant’s symptoms 15 have stabilized with treatment; there is no evidence of suicidal ideation, suicide 16 attempts, panic attacks, agoraphobia or other exacerbations. She has been able 17 to live normally and even take a number of trips, primarily to Mexico that can 18 require up to a 9 hour bus ride . . . . She even had a 3 month stay in the 19 Philippines. Because the claimant’s mental impairments did not cause at least 20 two ‘marked’ limitations or one ‘extreme’ limitation, the ‘paragraph B’ criteria 21 were not satisfied.” 22 (AR 26–27 (internal references to evidentiary exhibits omitted).) 23 On step four, the ALJ first concluded that, “through the date last insured, the 24 claimant had the residual functional capacity to perform light work as defined in 20 CFR 25 404.1567(b) except for occasional bending, stooping, crouching, climbing stairs, 26 kneeling; no crawling or climbing ladders; and due to her depression and anxiety, she is 27 28 9 19-cv-1760-GPC-WVG 1 limited to no complex or highly detailed work but can do simple or mildly detailed 2 work.” (AR 27.) In so finding, the ALJ stated that he “considered all symptoms and the 3 extent to which these symptoms can reasonably be accepted as consistent with the 4 objective medical evidence and other evidence, based on the requirements of 20 CFR 5 404.1529 and SSR [Social Security Ruling] 16-3p.” (AR 27–28.) Of note, the ALJ 6 commented that Plaintiff’s course of treatment “generally reflected a conservative 7 approach.” (AR 29.) Even in the context of mental health, “the claimant’s symptoms 8 have stabilized with conservative mental health treatment.” (Id.) 9 “The [ALJ] has also considered opinion evidence in accordance with the 10 requirements of 20 CFR 404.1527.” (AR 28.) At the same time, the ALJ decided to give 11 “very little weight” to Dr. Romero’s opinion that was articulated in the Treating Source 12 Statement, supra Section I.B.2. The ALJ decided that Dr. Romero’s opinions in the 13 Treating Source Statement were “not substantiated by objective findings,” but instead 14 “based on the claimant’s subjective account of what she could do.” (AR 30–31.) Since 15 this Treating Source Statement is at the crux of Plaintiff’s challenge, the Court will 16 further discuss the ALJ’s rationale infra Section III.A.1. 17 As another part of step four, the ALJ determined that Plaintiff cannot perform any 18 of her past relevant work. (AR 32.) The ALJ accepted the testimony of the vocational 19 expert on the issue. (Id.) 20 Finally, at step five, based on Plaintiff’s residual functional capacity, age, 21 education, and work experience, the ALJ determined that Plaintiff was not “disabled,” for 22 she can adjust to other work. (See AR 32–33.) Specifically: 23 • “The claimant was born on March 10, 1963 and was 53 years old, which is 24 defined as a younger individual age 18-49, on the date last insured. The 25 claimant subsequently changed age category to closely approaching advanced 26 age (20 CFR 404.1563).”; 27 28 10 19-cv-1760-GPC-WVG 1 • “The claimant has a marginal education and is able to communicate in English 2 3 (20 CFR 404.1564).”; • “Transferability of job skills is not material to the determination of disability 4 because using the Medical-Vocational Rules as a framework supports a finding 5 that the claimant is ‘not disabled,’ whether or not the claimant has transferable 6 job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).”; and 7 • “Through the date last insured, considering the claimant’s age, education, work 8 experience, and residual functional capacity, there were jobs that existed in 9 significant numbers in the national economy that the claimant could have 10 11 performed (20 CFR 404.1569 and 404.1569a).” (AR 32 (internal reference to evidentiary exhibits omitted).) 12 Based on this five-step analysis, the ALJ decided that “[Plaintiff] was not disabled 13 under sections 216(i) and 223(d) of the Social Security Act through December 31, 2016, 14 the date last insured.” (AR 33.) 15 On July 15, 2019, the Appeals Council denied Plaintiff’s request for further 16 review, noting “the reasons [Plaintiff cited in her appeal] do not provide a basis for 17 changing the Administrative Law Judge’s Decision.” (See AR 1–8.) By so finding, the 18 Appeals Council confirmed the ALJ’s determination of non-disability and denied 19 Plaintiff Title II benefits. 20 F. 21 On September 13, 2019, Plaintiff initiated this litigation. (ECF No. 1.) Pursuant to The Instant Lawsuit 22 42 U.S.C. § 405(g), Plaintiff seeks judicial review of Defendant’s denial of Title II 23 benefits. (See id.) On October 11, 2019, Plaintiff filed a First Amended Complaint, 24 which serves as the operative complaint in this matter. (ECF No. 6.) On December 20, 25 2019, Magistrate Judge Gallo issued a Scheduling Order on cross-summary judgment 26 motions. (ECF No. 14.) On February 20, 2020, Plaintiff timely filed her summary 27 28 11 19-cv-1760-GPC-WVG 1 judgment motion. (ECF No. 18.) On April 16, 2020, Defendant timely filed its cross- 2 summary judgment motion (and opposition to Plaintiff’s summary judgment motion). 3 (ECF No. 19.) On May 19, 2020, Plaintiff replied to Defendant’s cross-summary 4 judgment motion. (ECF No. 20.) 5 On February 3, 2021, Magistrate Judge Gallo issued an R&R recommending 6 Plaintiff’s motion for summary judgment be denied and Defendant’s cross-motion for 7 summary judgment be granted. (ECF No. 21.) No objections have been filed by either 8 party by the February 11, 2021 deadline provided in the R&R. 9 II. STANDARD OF REVIEW 10 A. 11 The district court’s duties in connection with an R&R of a magistrate judge are set 12 forth in 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b). The district judge 13 must “make a de novo determination of those portions of the report . . . to which 14 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings 15 or recommendations made by the magistrate.” 28 U.S.C. § 636(b). The district court 16 need not review de novo those portions of an R&R to which neither party objects. See 17 Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (citing United States v. Reyna- 18 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). 19 The Magistrate Judge’s R&R Specifically regarding the magistrate judge’s findings of fact, when no objections 20 are filed, the Court may assume the correctness of it and decide the motion on the 21 applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 22 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). Here, because 23 no objections have been filed, the Court assumes the correctness of the Magistrate 24 Judge’s factual findings and substantially adopts them in full. 25 /// 26 27 28 12 19-cv-1760-GPC-WVG 1 B. 2 A court “will disturb the denial of benefits only if the decision contains legal error 3 or is not supported by substantial evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 4 (9th Cir. 2008) (quotations omitted). “Substantial evidence is such relevant evidence as a 5 reasonable mind might accept as adequate to support a conclusion.” Id. (quotation 6 omitted). “[T]he evidence must be more than a mere scintilla but not necessarily a 7 preponderance.” Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation 8 omitted). The court will uphold the ALJ’s conclusion when the evidence is susceptible to 9 more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. The Commissioner’s Final Agency Decision 10 2005) (citation omitted). “When evidence reasonably supports either confirming or 11 reversing the ALJ’s decision, we may not substitute our judgment for that of the ALJ.” 12 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (citing 13 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). 14 The Court must consider the record as a whole, weighing both the evidence that 15 supports and detracts from the ALJ’s conclusions. Desrosiers v. Secretary of Health & 16 Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citation omitted). If the evidence is 17 inconclusive, “questions of credibility and resolution of conflicts in the testimony are 18 functions solely of the Secretary.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 19 1982) (quoting Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971)). 20 III. DISCUSSION 21 For purposes of the Social Security Act, a claimant is disabled if she is unable “to 22 engage in any substantial gainful activity by reason of any medically determinable 23 physical or mental impairment which can be expected to result in death or which has 24 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 25 U.S.C. § 423(d)(1)(A). ALJs determine such “disability” pursuant to a five-step 26 evaluation process under 20 C.F.R. § 404.1520(a)(4), where generally speaking, the ALJ 27 28 13 19-cv-1760-GPC-WVG 1 considers: (1) the claimant’s work activity, i.e., “substantial gainful activity”; (2) the 2 severity of claimant’s medical impairments; (3) whether the severe medical impairments 3 satisfy the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1 and meets the duration 4 requirement (where if it does, the claimant is deemed disabled and if not, the ALJ moves 5 on to step four); (4) the claimant’s residual functional capacity (“RFC”) and past relevant 6 work; and (5) the possibility of adjusting to other work, based on the claimant’s RFC, 7 age, education, and work experience. The claimant carries the initial burden of proving 8 disability. See 42 U.S.C. § 423(d)(5). “The burden of proof is on the claimant at steps 9 one through four, but shifts to the Commissioner at step five.” Bray v. Comm’r of Soc. 10 Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (citation omitted). And concerning the 11 claimant’s possibility of adjusting to other work (step five), the ALJ may call upon a 12 “vocational expert” to testify what jobs the claimant would be able to do given his/her 13 RFC, and the availability of such jobs in the national economy. Garrison v. Colvin, 759 14 F.3d 995, 1011 (9th Cir. 2014) (citation omitted). 15 Here, the ALJ’s five-step analysis concluded that Plaintiff was not disabled. (See 16 AR 21–34.) Plaintiff challenges this on two grounds. First, Plaintiff argues that the ALJ 17 failed to properly accord the medical evidence of her treating physician and examining 18 physician (Dr. Romero and Dr. Levine, respectively). (ECF No. 18-1 at 6–21.) Second, 19 Plaintiff argues that the ALJ’s finding of Plaintiff’s “moderate difficulties” (in terms of 20 mental impairments) is inconsistent with the lack of limitations regarding concentration, 21 persistence, or pace in Plaintiff’s RFC. (Id. at 22–23.) 22 The Magistrate Judge found that the ALJ properly assessed the opinion evidence of 23 Plaintiff’s treating and examining physicians. (See ECF No. 21 at 13–19.) The 24 Magistrate Judge also concluded that the ALJ properly assessed Plaintiff’s RFC. (Id. at 25 19–21.) 26 /// 27 28 14 19-cv-1760-GPC-WVG 1 The Court agrees with the Magistrate Judge and finds that the ALJ did not err. The 2 ALJ did not broadly reject Dr. Romero’s opinion; the ALJ’s reservation was specifically 3 against Dr. Romero’s Treating Source Statement from April 28, 2016. The ALJ took 4 issue with this document because several conclusions were made without objective 5 evidentiary support to support the conclusion that Plaintiff cannot conduct light work 6 with certain limitations. While Plaintiff had severe medical ailments, ultimately they 7 were controlled. In addition, it was acceptable for the ALJ to not explicitly mention Dr. 8 Levine’s opinion, since the substantive content of it (i.e., those that were not conclusory 9 on the issue of disability) was incorporated in other parts of the decision. Finally, the 10 ALJ appropriately determined Plaintiff’s RFC. As to Plaintiff’s protests, case law 11 supports the proposition that a claimant may be able to perform simple or mildly detailed 12 work, despite “moderate limitations” in certain mental capabilities (which was a decision 13 that the ALJ was already making under “the benefit of the doubt,” (AR 26)). 14 A. 15 Plaintiff argues that the ALJ failed to analyze medical opinion evidence, namely The Opinions of Plaintiff’s Physicians 16 the opinions of Plaintiff’s treating physician Dr. Romero and Plaintiff’s examining 17 physician Dr. Levine. The Court ultimately concludes that the ALJ gave appropriate 18 weight to each opinion, and that the ALJ’s findings (to an extent, in spite of the opinions) 19 were supported by substantial evidence and did not contain legal error. 20 “Regardless of its source, [an ALJ] will evaluate every medical opinion” it 21 receives. 20 C.F.R. § 404.1527(c). Generally, the treating physician’s opinion is 22 afforded the greatest weight. However, its authority is not absolute; “[the treating 23 physician’s opinion] is not binding on an ALJ with respect to the existence of an 24 impairment or the ultimate determination of disability.” Batson v. Comm’r of Soc. Sec. 25 Admin., 359 F.3d 1190, 1194–95 (9th Cir. 2004) (quoting Tonapetyan v. Halter, 242 F.3d 26 1144, 1149 (9th Cir. 2001)). Specifically, “an ALJ may discredit treating physicians’ 27 28 15 19-cv-1760-GPC-WVG 1 opinions that are conclusory, brief, and unsupported by the record as a whole, or by 2 objective medical findings.” Id. at 1195 (internal citations omitted). 3 Further, “conflict between treatment notes and a treating provider’s opinions may 4 constitute an adequate reason to discredit the opinions of a treating physician or another 5 treating provider.” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (citations 6 omitted); cf. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (requiring “clear and 7 convincing reasons that are supported by substantial evidence” if the ALJ is rejecting the 8 “uncontradicted opinion” of the treating physician). Indeed, deference to the treating 9 physician’s opinion is only given if the opinion is “not inconsistent with the other 10 substantial evidence in [the claimant’s] case record.” See 20 C.F.R. § 404.1527(c)(2). 11 And if the treating physician’s opinion is not given controlling weight, the following 12 factors determine the appropriate weight: (1) length of the treatment relationship and the 13 frequency of the examinations, (2) nature and extent of the treatment relationship, (3) 14 supportability, (4) consistency, (5), specialization, and (6) other factors the claimant 15 presents. See id. § 404.1527(c). 16 17 18 1. Dr. Romero’s Opinion a. Nature of the Dispute Primarily at issue in this case is Plaintiff’s assertion that the ALJ did not accord the 19 appropriate weight to Dr. Romero, who is the treating physician for Plaintiff. But the 20 Court first clarifies this assertion’s scope. The ALJ’s decision is actually replete with Dr. 21 Romero’s observations. For example, when determining severe medical impairments 22 under step two of the disability analysis, the ALJ refers to a variety of Dr. Romero’s 23 progress notes. (See AR 24–25.) This is true for step three as well, where progress notes 24 from Dr. Romero show “that the claimant is able to attend to and follow commands 25 normally and with intact memory,” “that the claimant has no difficulty focusing on a 26 subject,” etc. (AR 26.) Further, in analyzing step four: “Repeat physical examinations 27 28 16 19-cv-1760-GPC-WVG 1 by treating sources, including Dr. Romero, do not substantiate the claimant’s allegations 2 of pain and limitation . . . .” (AR 29.) Indeed, “physician Romero noted that the claimant 3 is ‘stable’ regarding her pain as it is well managed.” (Id.) 4 Rather, Plaintiff’s frustration is targeted at the ALJ giving “very little weight” to 5 Dr. Romero’s Treating Source Statement from April 28, 2016. (AR 31.) Upon close 6 review of the Treating Source Statement and the ALJ decision, it is plain that the Treating 7 Source Statement was carefully considered, compared with the record evidence, and 8 given the weight that it deserved. 9 b. The Treating Source Statement and the ALJ Decision 10 Dr. Romero’s Treating Source Statement opined that Plaintiff is likely to be: “off 11 task” 25% of a typical workday, absent from work more than 4 days per month, able to 12 lift or carry up to 20 pounds at most, able to sit a total of 4 hours in an 8-hour workday, 13 able to stand or walk for a total of 3 hours in an 8-hour workday, needing the option to sit 14 or stand at will but not needing an assistive device to ambulate, having some limitations 15 in the left and right arms/hands (such as only occasionally being able to push and pull), 16 occasionally able to climb ramps and stairs but never for ladders and scaffolds, and rarely 17 able to balance, stoop, kneel, crouch and never able to crawl. (See AR 1204–07.) 18 Further, the Treating Source Statement opined that there will be certain environmental 19 limitations for Plaintiff. She can occasionally operate a motor vehicle and be exposed to 20 temperature extremes, but can never be exposed to unprotected heights, pulmonary 21 irritants, and vibrations. (See AR 1207.) 22 The ALJ decided to not give this document much weight because he concluded 23 that the opinions contained in it were “not substantiated by objective findings,” but 24 instead “based on the claimant’s subjective account of what she could do.” (AR 30–31.) 25 The ALJ reached this conclusion because while the Treating Source Statement stated that 26 Dr. Romero’s findings were based on the diagnoses of lumbar spondylosis, disc disorder, 27 28 17 19-cv-1760-GPC-WVG 1 neuritis, and idiopathic polyneuropathy, (AR 1204 (item 3),) the record evidence did not 2 support such diagnoses. 3 Concerning the diagnoses of lumbar spondylosis, disc disorder, and neuritis, the 4 ALJ discussed how “imaging showed only mild degenerative changes” and how Dr. 5 Romero’s own notes indicated that Plaintiff only had “mild” degenerative disc disease. 6 (AR 31 (citing AR 585).) 7 As to the diagnoses of idiopathic polyneuropathy, the ALJ concluded that there 8 was no evidence in the record to support this disorder. (AR 31.) The ALJ referred to 9 four sources of evidentiary exhibits in reaching his conclusion. First, the ALJ referenced 10 Dr. Romero’s January 22, 2014 office note. “Neither the lumbar spine impairment nor 11 the left knee impairment limits the claimant’s ability to walk as indicated by Dr. 12 Romero’s own examinations that reveal no motor weakness in the lower extremities; 13 intact reflexes; no sensory diminishment; and a normal gait.” (AR 31 (citing AR 714– 14 15).) Second, the ALJ referred to Dr. Romero’s May 19, 2015 office note, in which Dr. 15 Romero documented that Plaintiff was walking half a mile to a mile, three times a week. 16 (AR 31 (citing AR 1120).) Third, the ALJ referred to Dr. Romero’s November 14, 2016 17 office note, (AR 1750,) where Plaintiff’s pain was stable and well managed with 3 18 Percocet per day. (AR 31.) The ALJ also referenced Dr. Romero’s February 29, 2016 19 and August 3, 2016 office notes, (AR 1235, 1261,) which evinced similar pain 20 management and Percocet prescriptions. (See AR 31.) Fourth and finally, the ALJ 21 referenced Plaintiff’s travel records to argue that they conflicted with Dr. Romero’s 22 opinions on Plaintiff’s ability to perform certain tasks. (See AR 31 (citing AR 1110, 23 1113–14, 1258, 1712, 1741, 1751, 1756, 2499).) 24 c. The Evidentiary Record 25 The Magistrate Judge found that there was no impropriety in the ALJ’s decision 26 since the underlying evidentiary record controverts Dr. Romero’s broad conclusions of 27 28 18 19-cv-1760-GPC-WVG 1 Plaintiff’s disability status. The Court agrees with the Magistrate Judge’s finding 2 because the Treating Source Statement’s claims of “diagnoses” are at odds with the rest 3 of the administrative record. Important to note here, the ALJ is analyzing the Treating 4 Source Statement at stage four, i.e., determining Plaintiff’s RFC, not medical 5 impairments generally. The RFC is “what [one] can still do despite [one’s] limitations 6 . . . based on all the relevant evidence in [one’s] case record.” 20 C.F.R. § 416.945(a)(1). 7 In other words, when the Treating Source Statement represents that Plaintiff will 8 be off task 25% of a typical workday and absent from work more than 4 days per month, 9 there must be a “relevant evidence” that could back such claim. Similarly, when Dr. 10 Romero opines that Plaintiff can stand/walk for 3 hours and sit for 4 hours, there must be 11 a record to support this. The Treating Source Statement referenced the “diagnoses” as 12 such support. 13 Yet none of these diagnoses translates to the conclusion that Plaintiff seeks, 14 because they all stop short of indicating that Plaintiff cannot perform “light work” per 20 15 C.F.R. § 404.1567. Plaintiff attempts to present a variety of “objective evidence,” (ECF 16 No. 18-1 at 12–14, 15–20,) but they are not convincing. None of Plaintiff’s evidence 17 (including recent observations from 2015 to 2017) account for the fact that her ailments 18 are well-managed. In fact, the ALJ highlighted how the physicians have adopted a 19 “conservative” approach to Plaintiff’s physical and mental health treatment. (AR 29.) 20 Thus even when Plaintiff was diagnosed with idiopathic polyneuropathy, bilateral leg 21 numbness, or other lumbar spine impairments, (see AR 1233,) these cannot be the basis 22 to then conclude that light work is impossible. To illustrate, the next page of that same 23 medical report details how her “functional status [is] maintained with medication use,” 24 with “[n]o aberrant behavior or substance misuse demonstrated,” (AR 1234.) There is 25 simply no evidence to counter Dr. Romero’s own 2016 to 2018 opinions which state that, 26 despite all of Plaintiff’s symptoms, her pain is generally under adequate control. (See, 27 28 19 19-cv-1760-GPC-WVG 1 e.g., AR 1235, 1708, 1715, 1740, 1746.) Indeed, the ALJ explicitly discussed how “the 2 medications have been relatively effective in controlling the claimant’s symptoms.” (AR 3 29.) This is true for Plaintiff’s mental health conditions as well. (See AR 28–29 4 (discussing how Plaintiff’s moods have been “stable”).) 5 Given that multiple evidentiary records indicate a control over Plaintiff’s ailment, 6 which permits her to conduct light work with certain exceptions, the ALJ’s observation of 7 inconsistencies between the Treating Source Statement and Plaintiff’s own admissions 8 also becomes more salient. For example, the Treating Source Statement disclaimed how 9 Plaintiff can only sit a total of 4 hours in an 8-hour workday, or stand or walk for a total 10 of 3 hours in an 8-hour workday. (See AR 1205.) Such disclaimer is in clear tension 11 with enduring a 9-hour bus ride to Mexico, taking an international flight to the 12 Philippines, or walking half a mile to one mile three times a week. (See, e.g., AR 1120, 13 1712, 1751.) 14 15 d. Other Defenses for the Treating Source Statement Because the evidentiary record, including Dr. Romero’s own notes and Plaintiff’s 16 admissions, indicate that Plaintiff is still able to perform light work (albeit certain 17 limitations discussed by the ALJ), the ALJ did not err in rejecting the conclusions made 18 in Dr. Romero’s Treating Source Statement. The Court now addresses several other 19 claims made by Plaintiff. 20 First, Plaintiff claims that the ALJ “ignored or failed to address” Section 404.1527 21 factors. (See ECF No. 18-1 at 10–12.) The Court disagrees. To start, “the ALJ has no 22 obligation to explicitly enumerate each of the six factors described in the Social Security 23 regulations,” because the regulations only require “good reasons” to be provided when 24 giving weight to the treating physician’s opinion. See Grant v. Astrue, 857 F. Supp. 2d 25 146, 155 (D.D.C. 2012) (citations omitted). Indeed, Plaintiff concedes that the ALJ 26 acknowledged Dr. Romero’s reasonable knowledge of Plaintiff’s impairment based upon 27 28 20 19-cv-1760-GPC-WVG 1 the treatment relationship and his specialization, (see ECF No. 18-1 at 10–11,) so 2 Plaintiff’s frustration boils down to why these two factors were not deemed to be 3 determinative. The answer is that the other factors prevailed, especially given the 4 inconsistencies the ALJ identified between the Treating Source Statement and the record 5 evidence. 6 Next, Plaintiff argues that there was “no basis in the record” for the ALJ to assume 7 that Dr. Romero’s assessment was based on Plaintiff’s subjective account. (ECF No. 18- 8 1 at 12.) But contrary to Plaintiff’s assertion, the ALJ cited to at least five different 9 sources of records to make his supposition. As discussed supra pages 17–18 of this 10 Order, the ALJ first identified that Dr. Romero’s opinions were based on his diagnoses, 11 and then discussed how those diagnoses were not supported by the record. Plaintiff cites 12 to Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194 (9th Cir. 2008), but Ryan took issue with 13 the underlying ALJ’s decision because there was “nothing in the record to suggest that 14 [the treating physician] . . . relied on [the claimant’s] descriptions more heavily than his 15 own clinical observations.” Id. at 1200. Such is far from the case here. The ALJ cited to 16 multiple parts of the record to conclude that the Treating Source Statement’s reference to 17 Dr. Romero’s “diagnoses” was unconvincing. Once Dr. Romero’s diagnoses no longer 18 were a valid basis for his opinion on light work, it is reasonable to conclude that 19 Plaintiff’s subjective accounts of her condition factored in more than it should have. 20 Relatedly, Plaintiff doubles down on Dr. Romero considering Plaintiff’s subjective 21 complaints, arguing that all medical examinations account for patients’ self-description of 22 their impairments and limitations. Of course, all physicians start from their patients’ self- 23 descriptions of their health. However, the governing law indicates that for claimants of 24 Title II benefits, they must go beyond. The treating physician’s opinion must always be 25 supported by the record and objective evidence, and not just the claimant’s “subjective 26 27 28 21 19-cv-1760-GPC-WVG 1 descriptions of pain.” See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 2 (9th Cir. 2004). 3 Finally, Plaintiff argues that the ALJ’s discussion of inconsistency constituted a 4 “substitution” of the ALJ’s own opinion for that of the medical provider, citing to Miller 5 v. Astrue, 695 F. Supp. 2d 1042 (C.D. Cal. 2010). (ECF No. 18-1 at 15–16.) As the 6 Magistrate Judge commented too, Miller v. Astrue is not applicable to the facts in the 7 present lawsuit. The court in Miller v. Astrue disapproved “the ALJ [from acting] as his 8 own medical expert, [or] substituting his opinion for [the treating physician’s] 9 professional interpretation of the clinical testing.” 695 F. Supp. 2d at 1048. Here, the 10 issue is what constitutes such “substitution.” Contrary to Plaintiff’s suggestion, Miller v. 11 Astrue did not equate finding inconsistencies in treatment notes with an ALJ acting as his 12 own medical expert. The court instead took issue with the ALJ substituting a medical 13 expert’s opinion with his own based in part on his own observations at the hearing. See 14 id. at 1048. 15 Such is not the case here. Rather, inconsistency between a treating physician’s 16 opinion and medical evidence in the record can be a specific, legitimate reason to 17 discount the treating physician’s opinion. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 18 (9th Cir. 2008) (“The incongruity between [the treating physician’s q]uestionnaire 19 responses and her medical records provides an additional specific and legitimate reason 20 for rejecting [the treating physician’s] opinion of [the claimant’s] limitations.”); see also 21 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001 (“[A]n ALJ need not accept a 22 treating physician’s opinion that is . . . unsupported by clinical findings.”). In the present 23 case, the ALJ provided specific and legitimate reasons for discounting the conclusions 24 made in the Treating Source Statement. The ALJ did not ignore the requisite regulatory 25 /// 26 27 28 22 19-cv-1760-GPC-WVG 1 factors in considering Dr. Romero’s opinion, nor did the ALJ substitute the opinion with 2 his own judgment. 5 3 2. 4 Dr. Levine’s Opinion Plaintiff also briefly questions the ALJ’s decision for not acknowledging the 5 opinion of Dr. Levine, who at a different lawsuit evaluated Plaintiff and concluded that 6 she was disabled. (See ECF No. 18-1 at 8, 20.) 7 As previously discussed, “[r]egardless of its source, [an ALJ] will evaluate every 8 medical opinion” it receives. 20 C.F.R. § 404.1527(c). However, this does not mean that 9 the ALJ must discuss every piece of evidence in his or her decision. See Vincent on 10 Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984). Further, a 11 statement by a medical source that a plaintiff is “disabled” or “unable to work” does not 12 mean that the Commissioner is compelled to make that same finding. See id. § 13 404.1527(d)(3). The Commissioner “will not give any special significance to the source 14 of an opinion on issues reserved for the Commissioner,” such as whether a claimant 15 qualifies as “disabled” under the Act. Id. 16 Here, Dr. Levine discussed how Plaintiff previously was able to lift more than 100 17 pounds, squat, kneel, climb, crawl, etc. (See AR 1785.) These same considerations are 18 referenced already. The ALJ determined that Plaintiff had the RFC in which she cannot 19 climb, kneel, crawl, etc. (AR 27.) And upon hearing from the vocational expert, the ALJ 20 21 22 23 24 25 26 27 28 Plaintiff also discusses that consistency is a “nuanced” medical consideration, and how Dr. Romero’s opinion could be read as consistent since consistency does not need to be free of any doubt. But even assuming a “nuanced” view, Plaintiff simply fails to direct the Court as to which of Dr. Romero’s opinion concludes that Plaintiff cannot conduct light work with limitations whatsoever. At best, Plaintiff’s argument demonstrates how the evidence is susceptible to more than one rational interpretation, in which case the Court must defer to the ALJ’s conclusion as discussed supra Section II.B. 5 23 19-cv-1760-GPC-WVG 1 concluded that Plaintiff can no longer perform her past relevant work, which was work at 2 the heavy/very heavy exertional level. (AR 32.) 3 In fact, the rest of Dr. Levine’s March 12, 2012 report contravenes Plaintiff’s 4 conclusions, for it summarizes unremarkable physical examination results: “slight 5 narrowing of the L5-S1 intervertebral disc space[, where the] remaining disc spaces are 6 adequately maintained,” “no evidence of fracture or bony abnormalities” in the hips, 7 “[n]ormal x-ray examination of the pelvis,” “[t]he glenohumeral joint appears normal” in 8 the left shoulder, “no evidence of fracture, soft tissue calcification or bony abnormality” 9 in either the right or left knee, and “[n]ormal x-ray examination of the right and left 10 11 knees. (AR 1792.) What Plaintiff is asking—i.e., go a step further and take Dr. Levine’s conclusion 12 that Plaintiff is “disabled” at face value—is expressly not required. See 20 C.F.R. § 13 404.1527(d)(3); see also id. § 404.1527(d)(1) (“A statement by a medical source that you 14 are ‘disabled’ or ‘unable to work’ does not mean that [the Commissioner] will determine 15 that you are disabled.”). 16 B. 17 Finally, Plaintiff contends that despite the ALJ’s determination that Plaintiff has 18 moderate difficulties concerning concentration, persistence, or pace, the ALJ “included 19 no limitations regarding concentration, persistence or pace in the RFC, but only limited 20 her to simple or mildly detailed work.” (ECF No. 18-1 at 22 (emphasis removed).) 21 Further, Plaintiff asserts that the ALJ failed to give “a more detailed assessment” of the 22 evaluation process. (See id.) According to the R&R, the ALJ properly assessed 23 Plaintiff’s RFC. The Magistrate Judge noted there is “ample detail” in the record in 24 which the ALJ examined and accounted for evidence bearing on Plaintiff’s ability to 25 concentrate, maintain stamina, and pace herself in mental tasks. (ECF No. 21 at 19–20.) 26 Once again, the Court agrees with the Magistrate Judge. 27 28 Plaintiff’s Residual Functional Capacity (“RFC”) 24 19-cv-1760-GPC-WVG 1 To reiterate, the RFC is the most a claimant can still do despite any physical or 2 mental limitations that affect her ability to perform work-related tasks. See 20 C.F.R. §§ 3 404.1545(a)(1), 416.945(a)(1). The ALJ’s RFC findings “will be upheld ‘if supported by 4 inferences reasonably drawn from the record’” and “when the evidence is susceptible to 5 more than one rational interpretation.” See Tommasetti v. Astrue, 533 F.3d 1035, 1038 6 (9th Cir. 2008) (citations omitted). 7 Applying the above standard, the ALJ appropriately considered the evidentiary 8 record in determining that, in spite of “moderate limitation,” Plaintiff could still perform 9 “simple or mildly detailed work,” and could perform “the requirements of representative 10 occupations such as: sub-assembler . . . with 30,000 national jobs[, and] handpacker . . . 11 with 110,000 national jobs.” (AR 27, 33.) In finding Plaintiff’s moderate limitation with 12 regard to concentrating, persisting, or maintaining pace, the ALJ considered Dr. 13 Romero’s progress notes and mental status examinations. (See AR 26.) The ALJ flagged 14 how these progress notes indicated that Plaintiff had “no difficulty focusing on a subject.” 15 (Id.) Further, the underlying mental status examinations demonstrated that Plaintiff “has 16 been mostly cognitively intact,” except for some visits where she had “poor 17 concentration.” (Id.) The ALJ even gave Plaintiff “the benefit of the doubt” and found a 18 moderate limitation when Dr. Gregory Nicholson conducted a consultative psychiatric 19 evaluation of Plaintiff and opined that Plaintiff had only a mild limitation. (Id.; see also 20 AR 789.) At worst, the fact that the ALJ elevated his finding to moderate limitation 21 explains why the ALJ also concluded that Plaintiff could still perform simple or mildly 22 detailed work. 23 And contrary to Plaintiff’s suggestion, finding that Plaintiff has “moderate 24 limitations” and deciding that Plaintiff could perform simple or mildly detailed work are 25 /// 26 27 28 25 19-cv-1760-GPC-WVG 1 not inconsistent conclusions. 6 See, e.g., Lee v. Berryhill, 721 F. App’x 604, 608 (9th Cir. 2 2017) (“[T]he ALJ accounted for his finding that [plaintiff] had moderate difficulties in 3 concentration, persistence, or pace by limiting [plaintiff] to ‘simple repetitive tasks’ 4 because this limitation accorded with the restrictions discussed in the medical record.”); 5 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (“The ALJ translated 6 [plaintiff’s] condition, including the pace and mental limitations, into the only concrete 7 restrictions available to him—[the doctor’s] recommended restriction to ‘simple tasks.’”); 8 Valdez v. Berryhill, 746 F. App’x 676, 678 (9th Cir. 2018) (“By limiting [plaintiff] to 9 simple instructions and work that requires only occasional changes, the ALJ reasonably 10 assessed specific functional limitations consistent with the record as a whole . . . .”). 11 Thus, upon reviewing the ALJ’s assessment of the RFC, the Court agrees with the 12 R&R and finds that the ALJ engaged in a sufficient assessment that was also consistent 13 with the moderate mental limitations identified in the medical record. See 20 C.F.R. § 14 416.945(a)(2). Accordingly, the Court finds that the ALJ’s assessment of Plaintiff's RFC 15 is supported by substantial evidence and is free from material legal error. 16 IV. CONCLUSION 17 Based on the above, the Court ADOPTS the R&R and GRANTS Defendant’s 18 cross-motion for summary judgment, DENIES Plaintiff’s motion for summary judgment, 19 and AFFIRMS the decision of the Commissioner. The Clerk of the Court shall enter 20 /// 21 22 23 24 25 26 27 28 Plaintiff also mischaracterizes the ALJ decision as somehow conceding a need for “a more detailed assessment.” (See ECF No. 18-1 at 22–23; ECF No. 20 at 2.) To the contrary, the ALJ makes that assessment in the subsequent pages. (See AR 27–31.) 6 26 19-cv-1760-GPC-WVG 1 2 judgment in accordance with this Order. IT IS SO ORDERED. 3 4 Dated: March 31, 2021 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 19-cv-1760-GPC-WVG

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