Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 OUDREE E-S., Case No.: 23-cv-1655-W-KSC 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION FOR ORDER REVIEWING FINAL DECISION OF 14 MARTIN O’MALLEY, Commissioner of THE COMMISSIONER OF SOCIAL Social Security, 15 SECURITY Defendant. 16 17 Plaintiff filed this action challenging the final decision of the Commissioner of 18 Social Security denying plaintiff’s claim for benefits. Doc. No. 1. Having reviewed the 19 parties’ briefing and the Administrative Record (“AR”), the Court submits this Report and 20 Recommendation to the assigned District Judge. 21 I. BACKGROUND 22 Plaintiff applied for Disability Insurance Benefits on October 27, 2020. 190-96.1 The 23 Social Security Administration denied the claim on February 25, 2021. AR 72-83. The 24 Administration denied plaintiff’s claim upon rehearing on May 20, 2021. AR 85-103. 25 26 27 1 The Court adopts the parties’ citations to the certified record in this matter. All other 28 1 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on June 24, 2 2021. AR 125-26. Plaintiff, represented by counsel, appeared before the ALJ on May 13, 3 2022. AR 34-66. Plaintiff’s attorney and the ALJ both examined plaintiff at the hearing, 4 and the ALJ received testimony from a vocational expert. Id. After reviewing the 5 documentary evidence in the record and hearing the witnesses’ testimony, on July 28, 2022, 6 the ALJ ultimately concluded plaintiff was not disabled. AR 14-29. 7 The ALJ’s decision followed the five steps prescribed by applicable regulations 8 under which the ALJ must sequentially determine (1) if the claimant is engaged in 9 substantial gainful employment; (2) whether the claimant suffers from a “severe” 10 impairment; (3) if any impairment meets or is medically equal to one of the impairments 11 identified in the regulatory Listing of Impairments; (4) the claimant’s residual functional 12 capacity (“RFC”) and whether the claimant could perform any past relevant work; and (5) 13 whether a claimant can make an adjustment to other work based on his or her RFC. See 20 14 C.F.R. § 404.1250(a)(4); AR 18-19. The ALJ’s evaluation ends if at any individual step 15 the ALJ finds the claimant is or is not disabled. See 20 C.F.R. § 404.1250(a)(4). 16 At step one, the ALJ found plaintiff had not engaged in substantial gainful activity 17 since October 27, 2020, the date of her initial disability application. AR 19. At step two, 18 the claimant found plaintiff had the following severe impairments: lumbar disc 19 degeneration, diabetes mellitus, and essential hypertension. Id. The ALJ also noted the 20 following non-severe impairments: abdominal pain, iron deficiency anemia, vitamin D 21 deficiency, acute gastritis, chronic rhinitis, exercise induced asthma, rectal bleeding, 22 anxiety, and depression. AR 19-20. At step three, the ALJ found none of plaintiff’s 23 impairments met or exceeded the severity of the regulatory listings. AR 21. 24 At step five, the ALJ found plaintiff had the RFC to perform light work, except 25 plaintiff could lift or carry 20 pounds occasionally and 10 pounds frequently, stand or walk 26 for 6 hours and sit for 6 hours in an 8-hour workday, and push or pull as much as she could 27 carry. AR 22. Also, plaintiff had no limitations on her ability to climb ramps or stairs, but 28 she could only occasionally climber ladders, ropes, or scaffolds. Id. The ALJ found plaintiff 1 had no limitations as to balancing, and she could frequently stoop, kneel, and crouch. Id. 2 The ALJ also found plaintiff could only occasionally crawl, and she had to avoid 3 concentrated exposure to extreme heat, cold, humidity, fumes, dust, odors, gases, and poor 4 ventilation. AR 22-23. Finally, the ALJ found plaintiff must avoid unprotected heights and 5 dangerous moving machinery. AR 23. 6 Concluding step four, the ALJ found plaintiff could perform past relevant work as 7 an auto salesperson and a still photographer. AR 27. Finally, at step five, the ALJ found 8 there were jobs in the national economy that plaintiff could also perform, including mail 9 clerk, cleaner/housekeeper, and “[c]an filling and closing machine tender.” AR 28-29. The 10 ALJ accordingly concluded plaintiff was not disabled. AR 29. The Commissioner’s 11 decision became final on July 12, 2023, when the Appeals Council denied plaintiff’s 12 request for review. AR 1-6. This appeal followed. 13 II. STANDARD OF REVIEW 14 This Court will affirm the ALJ’s decision if (1) the ALJ applied the correct legal 15 standards; and (2) the decision is supported by substantial evidence. See Batson v. Comm’r 16 of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under the substantial 17 evidence standard, the Commissioner's findings are upheld if supported by inferences 18 reasonably drawn from the record, and if there is evidence in the record to support more 19 than one rational interpretation, the Court will defer to the Commissioner. Id. 20 Even if the ALJ makes an error, this Court can nonetheless affirm the denial of 21 benefits if such error was “harmless, meaning it was ‘inconsequential to the ultimate 22 nondisability determination.’” Ford v Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting 23 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). The Court’s ability to uphold 24 the ALJ’s decision is limited in that this Court may not make independent findings and 25 therefore cannot uphold the decision on a ground not asserted by the ALJ. See Stout v. 26 Comm’r of the Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). 27 //// 28 //// 1 III. ANALYSIS OF THE COMMISSIONER’S DECISION 2 Plaintiff identifies the following issues for review: whether the ALJ’s finding of a 3 non-severe mental impairment was supported by substantial evidence and whether the ALJ 4 properly rejected plaintiff’s subjective symptom testimony. The Court will address each 5 issue in turn. 6 (A) Whether the ALJ Erred by Finding a Non-Severe Mental Impairment 7 Plaintiff argues the ALJ erred by finding her anxiety and depression were non-severe 8 mental impairments. Doc. No. 12 at 4. Even if a step-two non-severity finding is erroneous, 9 any error is harmless when the ALJ includes non-severe impairments in the RFC analysis 10 at step four. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Here, the ALJ 11 concluded plaintiff’s mental impairments were non-severe. AR 20. However, the ALJ 12 correctly noted the obligation at step four to consider the impact of all non-severe 13 impairments on the plaintiff’s RFC. AR 18. Then, at step four, the ALJ fully considered 14 plaintiff’s mental impairments and their impact on her ability to work. AR 23-24. Plaintiff 15 does not attempt to explain how the ALJ’s RFC analysis would have been different if the 16 ALJ had classified the mental impairments as severe. The Court concludes the non-severity 17 finding at step two was therefore inconsequential to the outcome of the Commissioner’s 18 determination, and even if it had been erroneous, it would not be grounds to reverse. See 19 Lewis, 498 F.3d at 911. 20 (B) Whether the ALJ Improperly Rejected Plaintiff’s Subjective Symptom 21 Testimony 22 Plaintiff contends the ALJ erroneously rejected her subjective symptom testimony. 23 See Doc. No. 12 at 9-14. “A claimant's subjective symptoms, if credited, are relevant to the 24 determination of a claimant's [RFC]. . . . The RFC is used at step four to determine if a 25 claimant can do past relevant work and at step five to determine if a claimant can adjust to 26 other work.” Ferguson v. O’Malley, 95 F.4th 1194, 1198 (9th Cir. 2024) (internal citations 27 omitted). “To determine whether a claimant's subjective symptom testimony is credible, 28 the ALJ must engage in a two-step analysis: ‘First, the ALJ must determine whether the 1 claimant has presented objective medical evidence of an underlying impairment which 2 could reasonably be expected to produce the pain or other symptoms alleged.’” Id. at 1199 3 (citing Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)). If step one is satisfied, the 4 ALJ can only reject the plaintiff’s testimony for “clear and convincing reasons,” which 5 ultimately requires the ALJ to “show [their] work.” Id. (citations and internal quotation 6 marks omitted). 7 The ALJ in this case identified the following subjective symptom testimony 8 provided by plaintiff at the hearing: 9 At the hearing, the claimant testified to an inability to work because of back pain and diabetes. She has throbbing pain in her back with sitting, moving or 10 walking. She has to alternate and change positions because of her pain. She 11 has to lay on a pillow or on her side because of the pain. Due to her back pain, she could lift or carry no more than 5 pounds with her right hand. She could 12 sit for 15 minutes, after which she has to change positions. She is unable to sit 13 for long periods because of back pain and stiffness. She could stand for 10 minutes and walk for 5 minutes. She mentions that her feet swell when she 14 walks for long periods. She has problems with bending and crawling. Her 15 knees hurt when she puts weight on them. She has fatigue and anemia, and she tends to feel lethargic during the day. She has insomnia and this causes 16 sleep disturbances. She is not able to function during the day because she is 17 tired. She has high blood pressure and this causes her to have racing heartbeat. She has diarrhea every morning and this takes a couple of hours. She also 18 [has] abdominal pain and nausea. Every now and then, she would get large 19 amounts of rectal bleeding. She has asthma and this causes her to have shortness of breath with exertional activities. She states that she becomes short 20 of breath when she goes up the stairs. She uses an inhaler daily to manage her 21 asthma. She also mentions dizziness, nausea and diarrhea as side effects from her medications. 22 23 Mentally, she has depression and anxiety. She states that she has issues with short term memory and problems maintaining focus and concentration. She 24 would normally forget things after five minutes. She needs reminder for her 25 doctors’ appointments and day-to-day activities. She does not socialize with others and distances herself from people. She only goes outside when she has 26 a need to. She lives with her youngest and oldest children. She relies on her 27 daughter to help with daily activities.

28 1 AR 23-24.2 The ALJ found the first prong of the subjective symptom testimony test was 2 satisfied because plaintiff’s “medically determinable impairments could reasonably be 3 expected to cause the alleged symptoms.” AR 24. However, the ALJ rejected plaintiff’s 4 testimony because it was “not entirely consistent with the record.” Id. 5 At step two of the subjective symptom testimony analysis, an ALJ must identify 6 which testimony is not credible and specifically link that testimony to evidence in the 7 record that undercuts the credibility of the testimony. See Brown-Hunter v. Colvin, 806 8 F.3d 487, 494 (9th Cir. 2015); accord Ferguson, 95 F.4th at 1200-01. The ALJ may not 9 simply make the conclusory statement that plaintiff’s testimony is not credible because it 10 is inconsistent with the record and then proceed with an RFC analysis. Brown-Hunter, 806 11 F.3d at 493-94. This is because the obligation to provide clear and convincing “reasons” 12 for discounting a plaintiff’s testimony is separate and distinct from any obligation to 13 summarize record evidence that supports an RFC determination. Id. 14 Here, the ALJ provided a boilerplate statement that plaintiff’s testimony was 15 inconsistent with the record, and then performed an RFC analysis summarizing medical- 16 and other record evidence purportedly supporting the RFC determination. AR 24-27. The 17 RFC analysis amounts to little more than summaries of the evidence periodically followed 18 by the single-sentence conclusion that “claimant can perform light work with postural and 19 environmental limitations to account for deficits from these impairments,” or variations 20 thereof. See id. The ALJ did not specifically identify the various impairments identified in 21 plaintiff’s testimony. For example, plaintiff identified an inability to walk, sit, or stand for 22 more than 5-15 minutes, but nowhere in the ALJ’s RFC analysis does there appear a reason 23 why the ALJ found this assertion not credible. Similarly, although plaintiff testified about 24 25 26 27 2 Plaintiff does not suggest the ALJ omitted any material testimony. See Doc. No. 12 at 9, 11. The Court’s independent examination of the record confirms the ALJ accurately 28 1 ||serious difficulties concentrating, the ALJ did not identify this testimony specifically and 2 || link it to evidence that might be used to rebut that testimony. The ALJ failed to identify all 3 other subjective symptoms and rebut them as well. The ALJ’s list of citations to the 4 ||record and series of boilerplate conclusions was insufficient to discharge the duty to 5 ||provide “clear and convincing reasons” for rejecting plaintiff's testimony in this case. 6 || Accordingly, the Court concludes the decision was not supported by substantial evidence. 7 || See Ferguson, 95 F.4th at 1199 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th 8 || Cir. 2007)). 9 IV. CONCLUSION 10 This Court recommends the District Judge enter an order VACATING the final 11 || decision of the Commissioner and REMANDING for further proceedings. On remand, the 12 || ALJ shall reevaluate the record and issue a new decision that properly discharges the 13 || obligation to evaluate plaintiff's subjective symptom testimony. 14 Any objections (or responses thereto) to this Report and Recommendation shall be 15 || filed within the time limits allowed by Federal Rule of Civil Procedure 72(b). 16 IT IS SO RECOMMENDED AND ORDERED 17 || Dated: July 18, 2024 Jk. Kn 19 Hori. Karen 8S. Crawford United States Magistrate Judge 20 21 22 23 24 25 26 27 28