Opinion
23cv2182-W (LR)
02-18-2025
SAMANTHA M.,[1] Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,[2] Defendant.
REPORT AND RECOMMENDATION REGARDING JOINT MOTION FOR JUDICIAL REVIEW [ECF NO. 16]
HONORABLE LUPE RODRIGUEZ, JR. UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Thomas J. Whelan, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. On November 28, 2023, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social Security denying her application for a period of disability and disability insurance benefits. (ECF No. 1.)
Now pending before the Court is the parties' Joint Motion for Judicial Review. (ECF No. 16.) For the reasons set forth below, this Court RECOMMENDS that the decision of the Commissioner be AFFIRMED.
I. PROCEDURAL BACKGROUND
On July 1, 2021, Plaintiff filed an application for a period of disability and disability insurance benefits, alleging disability beginning on October 20, 2019. (ECF No. 9 (“AR”) at 187-91.) After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (See Id. at 127-28.) On November 16, 2022, a hearing was held before an ALJ during which Plaintiff was represented by counsel. (See id. at 17.) A Vocational Expert (“VE”) was also present at the hearing. (See id.) On February 15, 2023, the ALJ found that Plaintiff was not disabled since the application filing date. (See id. at 33.) On February 23, 2023, Plaintiff requested that the Appeals Council review the ALJ's decision. (See id. at 5.)
“AR” refers to the Administrative Record filed on January 29, 2024. (ECF No. 9.) The Court's citations to the AR in this Report and Recommendation are to the pages listed on the original document rather than the page numbers designated by the Court's Case Management/Electronic Case Filing System (“CM/ECF”). For all other documents, the Court's citations are to the page numbers affixed by CM/ECF.
On September 25, 2023, the Appeals Council denied Plaintiff's request to review the ALJ's decision. (See Id. at 1-3.) Plaintiff filed the instant civil action on November 28, 2023. (See ECF No. 1.)
II. SUMMARY OF THE ALJ's FINDINGS
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her application date. (See AR at 19.) At step two, the ALJ determined that Plaintiff has the severe impairments of migraines, post-concussion syndrome, and late effects of injuries to the central nervous system. (See id.) Though Plaintiff also asserted additional medically determinable impairments, including major depression disorder and unspecified anxiety disorder, the ALJ declined to recognize these as severe after engaging in an analysis of how these impairments impacted Plaintiff across four functional areas. (See Id. at 19-25.) At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the impairments listed in the Commissioner's Listing of Impairments. (See id. at 25.) Next, the ALJ determined that Plaintiff has the residual functional capacity (“RFC”) to “perform light work as defined in 20 CFR 404.1576(b) except that the [Plaintiff] is limited to occasionally postural activities, no concentrated exposure to cold, excessive noise, excessive vibrations, dusts, gases, fumes, and other airborne irritants, but not even moderate exposure to unprotected heights or hazardous machinery.” (Id.)
At step four, the ALJ determined that Plaintiff has no relevant past work. (See Id. at 31.) The ALJ then proceeded to step five of the sequential evaluation process. Based on the VE's testimony that a hypothetical person with Plaintiff's vocational profile and RFC could perform the requirements of occupations that existed in significant numbers in the national economy, such as cashier II (DOT 211.462-010), 560,000 jobs; marker (DOT 209.587-034), 129,000 jobs; and ticket seller (DOT 211.467-030), 15,000 jobs, the ALJ found that Plaintiff was not disabled. (See id. at 32-33.)
III. DISPUTED ISSUES
As reflected in the parties' Joint Motion for Judicial Review, Plaintiff raises three issues as grounds for a finding that Plaintiff is entitled to Disability Insurance Benefits and a remand of the ALJ's decision:
1. Whether the ALJ reasonably determined that Plaintiff's major depressive disorder and unspecified anxiety disorder were nonsevere impairments at step two. (See ECF No. 16 at 7-8.)
2. Whether the ALJ properly assessed Plaintiff's impairments at step three. (See id.)
3. Whether the ALJ supported Plaintiff's RFC with substantial evidence. (See id.)
IV. STANDARD OF REVIEW
Section 405(g) of the Social Security Act allows unsuccessful applicants to seek judicial review of the Commissioner's final decision. 42 U.S.C. § 405(g). The scope of judicial review is limited, and the denial of benefits will not be disturbed if it is supported by substantial evidence and contains no legal error. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).
The Court must affirm the Commissioner's decision if it is “supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (per curiam). “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial evidence means “more than a mere scintilla but less than a preponderance.” Id. In determining whether the Commissioner's decision is supported by substantial evidence, the Court must “weigh both the evidence that supports and the evidence that detracts from the ALJ's factual conclusions.” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014) (internal quotation omitted). When evidence is “susceptible to more than one rational interpretation, one of which supports the ALJ's decision,” the Court must uphold the ALJ's conclusion. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The Court may consider “only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which [he or she] did not rely.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (internal quotation omitted).
Error in a social security determination is subject to harmless error analysis. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Harmless error “exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (internal quotation omitted). Harmless error also exists “if the agency's path may be reasonably discerned, even if the agency explains its decision with less than ideal clarity.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (internal quotation omitted).
V. RELEVANT MEDICAL RECORDS AND TESTIMONY
A. Plaintiff's Car Collision and Follow-Up Care
1. October 4, 2019 collision
On October 4, 2019, Plaintiff was involved in a car collision; she alleges this collision coincided with the onset of her disability. (See AR at 45, 305.) Plaintiff “was a restrained driver in a street accident involving another vehicle with impact on the back of the [Plaintiff's] vehicle at moderate velocity when the [Plaintiff] was completely stopped. The airbag did not deploy and there was moderate damage to the [Plaintiff's] vehicle.” (Id. at 302.)
At her administrative hearing, Plaintiff stated that this vehicle collision occurred on October 20, 2019. (See AR at 45.) The record demonstrates that the vehicle collision occurred on October 4, 2019. (See id. at 305.)
Plaintiff presented to the emergency department following the vehicle collision. (See id. at 305.) Treatment notes from this visit indicate that Plaintiff exited her car after the impact, was ambulatory, and did not lose consciousness. (Id. at 302.) Following the vehicle collision, an ambulance transported Plaintiff to the emergency department where a CT scan of her brain, cervical spine, chest, abdomen, and pelvis did not indicate injury. (Id.) Records of an examination by Dr. James Hirshberg show Plaintiff complained of a severe left-sided headache, bilateral shoulder pain, chest pain, neck and back pain, and bilateral hip pain. (See id. 305-06.) X-rays of Plaintiff's ankle and cervical spine taken that day showed no fracture, dislocation, or soft tissue swelling. (See id. at 307.) A follow-up CT scan of the cervical spine showed bony mineralization and incomplete fusion of posterior ring C1, but no acute osseous abnormalities. (See Id. at 310.) A CT scan of Plaintiff's brain made at the same visit showed no evidence of acute traumatic intracranial injury. (See id. at 309.) CT scans of the abdomen and pelvis were normal. (See Id. at 311.)
2. Follow-up care for concussion-related conditions
Plaintiff received care from Dr. Joseph Behymer at the University of California, San Diego (“UCSD”) Student Health Services periodically between October 24, 2019 and July 12, 2021. (See id. at 336-41.) Notes from an appointment on October 31, 2019 include reports of confusion and difficulty speaking following the vehicle collision and a diagnosis of post-concussion syndrome. (See id. at 584.) Dr. Behymer also referenced photosensitivity and migraines, as well as an opinion from an ophthalmologist who “told [Plaintiff] that she had a lazy eye and that was also partially responsible for her symptoms with the post-concussion [syndrome].” (Id.) At a November 25, 2019 consultation with Dr. Haewon Lee, a physical medicine and rehabilitation specialist, Plaintiff described light sensitivity, pain radiating from the left side of her neck down to the left foot, and chronic thoracic and lumbar spine pain. (See id. at 577.) Plaintiff consistently reported headaches and light sensitivity over the course of her treatment with Dr. Behymer, though the severity of these headaches increased and decreased at various points. (See Id. at 525, 543, 545, 547-48, 555, 559-60, 565, 567, 569.)
Dr. Anastasie Dunn-Pirio, a neurologist, provided a neurological consultation for post-concussion syndrome on January 2, 2020. (See id. at 562.) Dr. Dunn-Pirio noted that Plaintiff hit her head and suffered whiplash at the time of the vehicle collision. (See id.) Dr. Dunn-Pirio's notes show Plaintiff reported photosensitivity, difficulties with cognition, speech, reading and writing, and nausea. (See id.) Plaintiff reported headaches four times per week, triggered by light, reading, writing, and going out in public. (See id.) Dr. Dunn-Pirio stated that Plaintiff's symptoms had improved since the initial injury, with treatment including Nortriptyline and Metoprolol. (See id.)
Nortriptyline is an antidepressant. See Rockett v. Astrue, Civil No. 10-0163-DMS (WVG), 2011 WL 4353126, at *7 n.25 (S.D. Cal. Aug. 16, 2011); Arellano v. Santos, Case No.: 3:18-cv-02391-BTM-WVG, 2021 WL 5140187, at *13 (S.D. Cal. Nov. 4, 2021).
Metoprolol is a beta-blocker used to lower blood pressure and treat angina, which is sold under the name Lopressor. See Est. of Wilson ex rel. Jackson v. Cnty. of San Diego, Case No.: 3:20-cv-00457-RBM-DEB, 2023 WL 8360718, at *3 (S.D. Cal. Dec. 1, 2023); Russell v. Astrue, No. 1:09-cv-01919-SMS, 2011 WL 1595982, at *5 n.4 (E.D. Cal. Apr. 27, 2011).
On January 31, 2020, Plaintiff underwent a neuropsychological examination by Dr. Natacha Akshoomoff, a neuropsychologist. (See id. at 550-55.) Dr. Akshoomoff administered a Wechlser Adult Intelligence Scale (4th Edition) test, noting that Plaintiff's results fell between the low end of the “average” range and “very superior.” (See id. at 552.) Though Dr. Akshoomoff indicated that Plaintiff's cognitive and academic skills were average to above average, she also noted “significant difficulty across several aspects of executive functioning in everyday life,” and “severe symptoms of depression and mild anxiety symptoms.” (Id. at 552-53.) Dr. Akshoomoff described Plaintiff's results as “consistent with a diagnosis of post-concussion syndrome.” (Id. at 553.)
Plaintiff received vision treatment at Daniel and Davis Optometry from February 4, 2021, through September 9, 2021. (See id. at 675-738.) Plaintiff improved over the course of this treatment, and treatment notes describe her as doing “really well” and having “great comprehension.” (Id. at 738.) Plaintiff's treatment focused on improving central-peripheral integration, visual memory, visual spatial relations, visual sequential memory, and visual closure. (See id. at 785.)
Records from the appointments at UCSD Student Health Services include a visit on September 28, 2020, where Plaintiff reported that she had had a headache for three-to-four days and difficulty concentrating. (See id. at 383-85.) The ALJ cited Dr. Lamar's April 12, 2021 appointment notes stating that Plaintiff had “severe” headaches lasting six hours, and “normal” gait, motor examination, cranial nerves, sensation, and muscle strength. (See Id. at 358-61.) At a follow-up examination on April 19, 2020, Plaintiff complained of pain in her ear and right knee. (See id. at 355-56.) Dr. Lamar's assessment at this appointment noted “normal” gait and range of motion in the right knee, and no focal defects as detected by a neurological exam. (See id. at 356-58.)
Plaintiff visited Las Palmas Medical Group on July 14, 2022 for an annual physical examination. (See id. at 811.) At this visit Plaintiff complained of fatigue and trouble sleeping, as well as a lack of appetite. (See id. at 812.) Plaintiff reported that she had been sleeping for twelve hours a day but was waking up tired. (See id.) Notes from this visit indicate that Plaintiff reported a history of depression, but that she was “mentally feeling well” on the date in question. (See id.) An exam performed by Donna Baldwin, PA-C indicated that cranial nerves were intact. (See id.)
B. Plaintiff's Mental Health Treatment
1. Pre-collision mental health treatment
Prior to her vehicle collision, Plaintiff had sought the services of Douglas Zabriskie, a licensed marriage and family therapist. (See id. at 819.) Plaintiff received therapy from Zabriskie from January 1, 2019, to October 15, 2020. (Id. at 820.) Zabriskie described Plaintiff as beginning therapy “because she felt anxiety being assertive in certain social situations, having difficulty managing some memories from her past that she correctly surmised contributed to some moderate anxiety over time.” (Id. at 819.) Zabriskie also stated that Plaintiff had made “great progress,” demonstrating academic potential and emotional readiness to leave home. (Id.)
2. Post-collision mental health treatment and evaluation
Dr. Kristen Jezior, a licensed clinical psychologist, opined that the vehicle collision exacerbated Plaintiff's existing mental health conditions when diagnosing Plaintiff with major depressive disorder and generalized anxiety disorder on April 3, 2020. (See id. at 512-14.) On November 25, 2019, Plaintiff was diagnosed with multiple personality disorder, alternatively referred to as dissociative identity disorder, and post-traumatic stress disorder (“PTSD”). (See Id. at 337-38.) Plaintiff reported mood swings beginning on January 3, 2020. (See id.)
Dr. Jezior worked with Plaintiff twelve times between April 3, 2020, and July 22, 2020, providing a treatment based on a combination of cognitive behavioral therapy, mindfulness, and supportive psychotherapy. (See id. at 346.) Dr. Jezior provided this treatment to enable Plaintiff to “learn how to cope with anxiety and depression related to post concussive syndrome.” (Id. at 517.) Plaintiff discontinued treatment with Dr. Jezior against her clinical recommendation, seeking psychodynamic treatment instead. (See Id. at 346-47, 439.) While working with Dr. Jezior, Plaintiff also received psychiatric treatment from Dr. Jennifer Roby, a psychiatrist, who prescribed medications including Escitalopram to manage anxiety and depression. (See id. at 497.)
Escitalopram is a selective serotonin reuptake inhibitor prescribed to treat depression and generalized anxiety disorder. See Cortez v. Astrue, No. 1:11-cv-00474-LJO-SMS, 2012 WL 3143875, at *6 n.10 (E.D. Cal. Aug.1, 2012); Patton v. Forest Lab'ys, Case No. EDCV 17-922-MWF (DTBx), 2018 WL 5270476, at *4 (C.D. Cal. May 10, 2018).
Beginning on March 12, 2021, Dr. Maria Rodriguez, a clinical psychologist, provided individual psychotherapy services to Plaintiff. (See id. at 1074, 1108-24.) Dr. Rodriguez emphasized “managing [Plaintiff's] depressive and anxious symptoms, coping with past trauma including a head injury from a car accident, identifying and resolving family conflict, improving self-esteem, accepting and coping with sensory and cognitive limitations, and stabilizing symptoms so [Plaintiff] can return to school.” (Id. at 1074.) Dr. Rodriguez noted that Plaintiff became exhausted during two of the forty-three sessions she had conducted, but that she had otherwise remained motivated and engaged. (See id.) Dr. Rodriguez recorded improvement in Plaintiff's anxiety and depression symptoms, and stated that Plaintiff remained hopeful and planned to transition back to school and/or work.
On October 20, 2021, Plaintiff underwent a “complete psychological evaluation” by Jessica Durr, PhD, a consultative examiner. (Id. at 740.) Dr. Durr's notes from this examination describe Plaintiff as fatiguing quickly, having sensitivity to light, and slurring her speech when overwhelmed with sensory input. (See id. at 741.) Dr. Durr also described Plaintiff's history of depression going back to high school. (See id.) Dr. Durr reported that Plaintiff was “relaxed and cooperative” during the interview, and that Plaintiff's “[i]ntellectual functioning on testing was in the average range.” (Id. at 743.) Dr. Durr stated that Plaintiff's auditory, visual, and visual working memory were in the average range, and that Plaintiff “was able to perform serial sevens” and “spell the word MUSIC forward and backward.” (See id.) Dr. Durr reported that Plaintiff had “a mild inability to maintain consistency and pace throughout the day,” as well as “a mild inability to follow normal rules of the workplace.” (Id. at 745.)
“Serial sevens” refers to a type of test used to assess concentration in which the subject subtracts serial sevens from 100. See Salmon v. Astrue, No. 10-CV-03636-LHK, 2012 WL 1029329, at *6 n.3 (N.D. Cal. Mar. 26, 2012); Sanders v. Barnhart, 1:06cv0101 DLB, 2006 WL 8450997, at *9 (E.D. Cal. Nov. 17, 2006).
C. Plaintiff's Hearing Testimony
At her hearing, Plaintiff testified that she had previously worked as a “barista or coffee maker at Starbucks” in 2019, while she was enrolled as a student at the University of California, Berkeley (“UC Berkeley”). (See id. at 46-47.) Plaintiff described the car collision precipitating her disability as costing “a little over $1,000 worth of damage” and noted that she had continued to use the vehicle up through the date of the hearing. (See id. at 48.) Plaintiff stated that the airbags did not deploy and that she was taken to the emergency room by an ambulance. (See id. at 48-49.) Plaintiff reported that she was able to attend online classes at UC Berkeley, listen to audiobooks at eighty percent speed, practice yoga, and do therapeutic painting. (See id. at 50.)
Plaintiff testified that she made a schedule “with help” and maintained it on her own. (Id. at 51.) Plaintiff reported being able to cook, brush her teeth, and care for her family's dogs, though she noted that her photosensitivity made it difficult to take them for walks during the day. (See id. at 52-53.) Plaintiff complained of migraines and anxiety, which she claimed contributed to difficulty concentrating or multitasking. (See id. at 53-54.) Plaintiff testified that she could not focus on a single task for more than fifteen minutes. (See id. at 58.) She claimed that, if she attempted to continue working on a task for longer than fifteen minutes, she would become uncoordinated, her vision would become blurry, her speech would slur, and her fine motor skills would deteriorate. (See id. at 59.) Additionally, Plaintiff noted “muscle stiffness and muscle cramps,” which she claimed impeded her mobility. (See id. at 54.)
VI. DISCUSSION
A. The ALJ's Evaluation of Plaintiff's Mental Impairments at Step Two Was Proper
1. The parties' arguments
Plaintiff asserts that the ALJ erred when he determined that Plaintiff's depression and anxiety were non-severe impairments. (See ECF No. 16 at 8.) Plaintiff states that substantial evidence in the record contradicts this determination. (See id. at 9.) In support, Plaintiff cites treatment notes summarizing her symptoms alongside the summary report prepared by Dr. Durr, a consultative examiner. (See id. at 9-10.) Plaintiff contends that the ALJ failed to explain how major depression did not impose significant limitations in work activities such that it should be considered a severe impairment, given the definition of major depression presently adopted by the American Psychiatric Association and the Seventh Circuit. (See id. at 10.)
“A diagnosis of ‘major depression' means, by definition, that an individual's ‘symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.” O'Connor-Spinner v. Colvin, 832 F.3d 690, 693 (7th Cir. 2016) (citing AM. PSYCHIATRIC ASS'N., DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS, 653 (4th ed. text revision 2000)).
Defendant argues that the ALJ did not err in determining that Plaintiff's major depression and anxiety constituted medically determinable, but non-severe, impairments. (See id. at 18.) Defendant bases this claim on Ninth Circuit precedent showing that a diagnosis, without demonstrating limiting effects, is insufficient to meet Plaintiff's burden when asserting a severe impairment. (See Id. (citing Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1164-65 (9th Cir. 2008)).) Defendant asserts that the ALJ's analysis of the impact of Plaintiff's anxiety and depression on four broad functional areas is sufficient to demonstrate that the ALJ's conclusion was reasonable. (See ECF No. 16 at 19.) Defendant also argues that the ALJ properly incorporated clinical evidence and Dr. Durr's report into his conclusions, and provided substantial evidence to support his decision to discount the statements from Dr. Rodriguez and Douglas Zabriskie based on the existing clinical evidence. (See Id. at 19-21.)
The ALJ's opinion erroneously refers to Plaintiff's therapist as “Maria Rodriquez, MA” and “Maria Rodriquez, PhD” at different points. (See AR at 17, 21.) Review of the records the ALJ cites in reference to this therapist indicates that the ALJ is referring to Maria Rodriguez, PhD, a clinical psychologist. (See id. at 1074, 1109-24.)
2. Applicable law
At step two of the sequential evaluation process, the Social Security Administration (“SSA”) considers the medical severity of the claimant's impairment. 20 C.F.R. § 404.1520(a)(4)(ii). To establish that a medically determinable impairment is “severe,” the claimant must show that it “significantly limits [her] physical or mental ability to do basic work activities.” Id. § 404.1520(c). “Basic work activities” include physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting. Id. § 404.1522(b).
The ALJ is required to “follow a special technique” at step two in evaluating the severity of the claimant's mental impairment. Id. § 404.1520a(a). First, the ALJ assesses the claimant's “pertinent symptoms, signs, and laboratory findings” to determine whether a medically determinable mental impairment is present. Id. § 404.1520a(b)(1). Second, if the claimant has a medically determinable mental impairment, the ALJ must “rate the degree of functional limitation resulting from the impairment(s)” for four broad functional areas: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. Id. § 404.1520a(b)(2), (c)(3). These four functional areas are known as the “Paragraph B criteria” due to how they are categorized in the listings. See 20 C.F.R. Part 404, Subpart P, Appendix 1.
The term “special technique” appears directly in the regulation and is used to note the additional processes the ALJ must use to evaluate mental impairments at step two of the five-step process described in 20 C.F.R. § 404.1520. 20 C.F.R. § 404.1520a(a). The regulation elaborates that this technique is necessary to help the ALJ “[i]dentify the need for additional evidence to determine impairment severity,” “[c]onsider and evaluate functional consequences” of a plaintiff's mental impairment, and consistently present the ALJ's findings. Id.
The degree of limitation for each of these categories are rated on the following scale: none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). If the degrees of limitation are rated as “none” or “mild,” the ALJ typically concludes that the impairment is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in the claimant's ability to do basic work activities. Id. § 404.1520a(d)(1). The ALJ's written decision must incorporate the pertinent findings and conclusions, and “must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s).” Id. § 404.1520a(e)(4).
The inquiry at step two of the sequential evaluation process is a “de minimis screening device” to screen for groundless claims. Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). The ALJ must consider the “combined effect of all the claimant's impairments” on the claimant's ability to function “without regard to whether each [impairment] alone was sufficiently severe.” Id. For purposes of step two of the sequential evaluation process, “[a]n impairment or combination of impairments may be found ‘not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.'” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (internal citation omitted) (emphasis in original).
3. Analysis
As noted above, the ALJ determined that Plaintiff's medically determinable impairments of major depressive disorder and generalized anxiety disorder were not severe impairments. (See AR at 23.) The ALJ came to this conclusion after identifying Plaintiff's major depression disorder and unspecified anxiety disorder as medically determinable impairments, and considering their impact on each of the four functional areas outlined in the disability regulations for evaluating mental disorders. (See id. at 20-23.)
With respect to the first functional area of understanding, remembering or applying information, the ALJ found that Plaintiff had mild limitation. (See id. at 21.) The ALJ noted that Plaintiff's Function Report included her statement that she “really needed to concentrate” to follow written instructions. (Id.) The ALJ further referenced notes from Dr. Roby and Dr. Jezior describing Plaintiff's thought process as linear and organized. (See id.) Additionally, the ALJ referenced Dr. Durr's report, noting both that Plaintiff's results on the Wechsler Adult Intelligence Scale (4th edition) were in the average range, and that Plaintiff was able to recall three of three objects immediately and two of three objects after five minutes. (See id. at 22.)
Next, the ALJ found that Plaintiff had mild limitation in interacting with others. (See id.) The ALJ noted that both Dr. Jezior and Dr. Roby reported a “cooperative attitude” and “good eye contact.” (Id.) The ALJ also referenced Plaintiff's testimony that she sometimes went to the lake with her mother and father, and that she saw friends several times per month. (See id.) The ALJ further noted Dr. Durr's report that Plaintiff was able to answer questions and “respond appropriately to imaginary situations” requiring “social judgment and knowledge of norms.” (Id.)
Further, the ALJ found that Plaintiff had mild limitation in concentrating, persisting, or maintaining pace. (Id.) The ALJ stated that Plaintiff reported in her Function Report that she could “pay attention for 15-20 minutes.” (Id.) The ALJ contrasted this with multiple reports from Dr. Jezior and Dr. Roby, who reported that Plaintiff did not have gross abnormalities in attention/concentration. (See id.) Additionally, the ALJ considered Dr. Durr's finding that Plaintiff was able to perform serial sevens, spell the word “MUSIC” backward and forward, and respond appropriately to imaginary situations, concluding that this demonstrated no more than mild limitation. (Id.)
Finally, the ALJ found that Plaintiff had mild limitation in the functional area of adapting or managing oneself. The ALJ noted that in her Function Report, Plaintiff reported having no difficulties performing personal care activities like bathing and grooming, and that she reported being able to complete household chores. (See id. at 2223.) The ALJ further noted that Plaintiff reported being able to engage in hobbies and earn marks she described as “very good” in online college courses. (Id. at 23.) The ALJ also referenced testimony from Plaintiff's administrative hearing that she still had a driver's license, drove the same car involved in the collision, and had driven to medical appointments the day prior to the hearing. (See id.)
The ALJ concluded that because Plaintiff's medically determinable mental impairments caused no more than “mild” limitation in any of the functional areas, and the evidence did not otherwise indicate that there was more than a minimal limitation in Plaintiff's ability to do basic work activities, the mental impairments were “nonsevere.” (Id. (citing 20 C.F.R. § 404.1520a(d)(1)).)
Plaintiff argues that the ALJ's finding was improper because a diagnosis of major depression definitionally demonstrates severe functional limitations, citing Seventh Circuit precedent, (see ECF No. 16 at 10 (quoting O'Connor-Spinner v. Astrue, 627 F.3d at 693)). This argument overstates the Seventh Circuit's holding, which dealt with crediting the opinions of state-agency psychologists over evidence introduced from the plaintiff's treating physicians, including a diagnosis of “major depression, recurrent severe.” O'Connor-Spinner, 627 F.3d at 698. Additionally, the Ninth Circuit has determined that diagnosis of an impairment without a demonstration of the functional limitations imposed by this impairment is “insufficient proof of disability.” Kaminski v. Kijakazi, 856 Fed.Appx. 735, 736 (9th Cir. 2021) (citing Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993)) (determining that the plaintiff's social worker's documentation of plaintiff's mental illnesses “without any assessment of their severity or functional limitations, [wa]s insufficient proof of disability”). District courts within the Ninth Circuit affirmed ALJ's findings of major depressive disorder as a non-severe impairment in the absence of evidence of significant functional limitations attributable to the impairment. See, e.g., Bay M. ex rel. Anthony M. v. Saul, Case No.: 18-cv-01015-W (JLB), 2019 WL 3562214, at *8-9 (S.D. Cal. Aug. 6, 2019); Miguel A.V. v. Saul, Case No. 8:20-cv-01560-AFM, 2021 WL 2864868, at *2-3 (C.D. Cal. July 8, 2021). Further, although Plaintiff cites Dr. Durr's opinion indicating mild functional limitations, Plaintiff does not offer specific evidence of functional limitations directly attributable to her major depression disorder or generalized anxiety disorder that the ALJ failed to address. (See AR at 10-11.)
The record therefore demonstrates that the ALJ considered Dr. Durr's opinion before concluding that Plaintiff's mental health impairments were non-severe. (See id. at 24.) In the absence of any functional limitations directly related to Plaintiff's major depressive disorder and/or unspecified anxiety disorder that the ALJ failed to consider, the Court cannot find error. The Court thus RECOMMENDS that the District Judge find that the ALJ did not commit error warranting reversal in determining that Plaintiff's mental health impairments were not severe at step two.
B. The ALJ Properly Assessed Plaintiff's Impairments at Step Three
1. Relevant factual background
Plaintiff's current application for benefits began after the vehicle collision on October 2, 2019. (See AR at 45, 305.) Plaintiff presented to the Emergency Department two days after her car collision for problems relating to “confusion and headache and left leg sciatica.” (Id. at 307.) Plaintiff continued to raise the issue of headaches repeatedly in subsequent medical appointments over the course of the next two years. (See id. at 324, 339-40, 355-58, 367, 373, 378, 383, 389, 398, 406, 411-12, 420, 423-24, 427, 43132, 436, 439, 451, 461, 471, 474, 482, 490, 509, 513, 545, 547-48, 555, 557-60, 562, 564-67, 569, 575, 580, 584, 588, 681, 740, 761, 780, 782, 793.) Plaintiff's medical records document reports that her headaches occurred almost every day, and that her headaches improved with Naproxen. (See id.) However, the records also demonstrate that Plaintiff's headaches became worse after prolonged light exposure, or when Plaintiff had to concentrate for an extended period. (See id.) The records also show that Plaintiff's headaches often occurred in conjunction with feelings of depression. (See id.)
2. The parties' arguments
Plaintiff argues that the ALJ's analysis at step three is insufficient to support a finding that Plaintiff did not have an impairment or combination of impairments equal in severity of one of the listed impairments. (See ECF No. 16 at 13.) Specifically, Plaintiff asserts that the ALJ insufficiently addressed Plaintiff's severe, medically determinable impairment of migraine headache disorders by failing to include analysis related to either Listing 11.02 (addressing epilepsy, which Plaintiff asserts is the most similar listing to migraine headaches) or SSR 19-4p. (Id.); Social Security Ruling, (“SSR”) 19-4P, 2019 WL 4169635, at *7 (Aug. 26, 2019). While Plaintiff concedes that the ALJ discussed the care that Plaintiff received, she contends that the ALJ insufficiently addressed the average length of migraines or the methods Plaintiff used to manage her symptoms. (See ECF No. 16 at 16.) Plaintiff argues that this omission constitutes harmful error and warrants reversal. (See id.)
“SSRs reflect the official interpretation of the [Social Security Administration] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.” Bray, 554 F.3d at 1224 (citation and internal quotation omitted). “SSRs do not carry the ‘force of law,' but they are binding on ALJs nonetheless.” Id. (citation omitted).
Defendant asserts that the ALJ's opinion contains an adequate discussion of migraine headaches, even if this discussion occurred outside of the ALJ's step three analysis. (See Id. at 24.) Specifically, Defendant alleges that the ALJ's discussion sufficiently addressed headaches by acknowledging Plaintiff's testimony around the frequency and severity of her headaches, and relying on Dr. Mazyruk's findings concerning Plaintiff's migraines when formulating Plaintiff's RFC. (See id. at 25.) Defendant further argues that Plaintiff has failed to demonstrate error in the ALJ's step three analysis. (See id.) Defendant maintains that doing so would require Plaintiff to “identify ‘which listing she believes meets or equals”' her impairment, and “set forth ‘evidence which would support the diagnosis and findings of a listed impairment,”' which Defendant asserts Plaintiff failed to do. (Id. at 25-26 (quoting Burch v. Barnhardt, 400 F.3d 676, 683 (9th Cir. 2005)).) Defendant argues that Defendant's failure to assert these issues in the administrative process relieved the ALJ of any duty to discuss these issues in depth. (See ECF No. 16 at 26 (citing Ford v. Saul, 950 F.3d 1141, 1157 (9th Cir. 2020)).) Absent such a showing, Defendant argues that this Court should reject Plaintiff's assertion of harmful error. (See ECF No. 16 at 27.)
3. Applicable law
a. General duty to develop the record
Although a claimant is ultimately responsible for providing sufficient medical evidence of a disabling impairment, “the ALJ has a special duty to develop the record fully and fairly and to ensure that the claimant's interests are considered, even when the claimant is represented by counsel.” Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). This responsibility “rests with the ALJ in part because disability hearings are inquisitorial rather than adversarial in nature.” Loeks v. Astrue, Civil. No. 09-1435-HA, 2011 WL 198146, at *5 (D. Or. Jan. 18, 2011) (citing Sims v. Apfel, 530 U.S. 103, 11011 (2000)). “It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits.” Sims, 530 U.S. at 111 (citing Richardson v. Perales, 402 U.S. 389, 400-01 (1971)).
b. The step three analysis
At step three, the ALJ considers whether one or more of the claimant's impairments meets or equals a listed impairment identified in 20 C.F.R. Pt. 404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant has an impairment or combination of impairments that meets or equals a listed impairment, the claimant is presumed disabled. See Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). “An ALJ must evaluate the relevant evidence before concluding that a claimant's impairments do not meet or equal a listed impairment.” Jessica B. v. Comm'r of Soc. Sec., No. 1:18-CV-3074-TOR, 2019 WL 850954, at *4 (E.D. Wash. Jan. 30, 2019) (quoting Lewis, 236 F.3d at 512) (internal quotations omitted). “An ALJ must evaluate the relevant evidence before concluding that a claimant's impairments do not meet or equal a listed impairment,” and “[a] boilerplate finding is insufficient to support a conclusion that a claimant's impairment does not do so.” Lewis, 236 F.3d at 512 (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)). An ALJ need not, however, state why a claimant failed to satisfy every different section of the listing of impairments where the factual support for his conclusion can be deduced from other discussions of the medical evidence in other parts of the ALJ's decision. See Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. 1990).
4. Analysis
Headache disorders are not among the listed impairments considered in step three of the disability evaluation process, though the SSA “may find that a primary headache disorder, alone or in combination with another impairment(s), medically equals a listing.” SSR 19-4P, 2019 WL 4169635, at *7. The most closely analogous listed impairment to a primary headache disorder is epilepsy (Listing 11.02). Id. Specifically, the SSA may find that a primary headache disorder is medically equivalent to the listed disorder of epilepsy if the claimant “exhibit[s] equivalent signs and limitations to those detailed in Listing 11.02 (Paragraph B or D for dyscognitive seizures).” Id. To qualify under Paragraph B of Listing 11.02, the claimant must show impairing events “occurring at least once a week for at least 3 consecutive months despite adherence to prescribed treatment.” Id. In evaluating whether a headache disorder meets this standard, the SSA considers medical description(s) of typical headache events, the frequency of these events, adherence to prescribed treatment, side effects of the treatment, and functional limitations imposed by the impairment. See id. To qualify under Paragraph D of Listing 11.02, a claimant must show impairing events “occurring at least once every two weeks for at least three consecutive months despite adherence to prescribed treatment and marked limitation in one area of functioning.” Id. In evaluating whether a claimant's headache disorder meets the severity and duration of the Listing 11.02 Paragraph D criteria, the SSA looks to those factors used in evaluating headache disorders under Paragraph B, as well as functional limitations in “[p]hysical functioning; understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing oneself.” Id.
The ALJ did not discuss Listing 11.02 in his decision. (See generally AR at 25.) Instead, the ALJ considered whether Plaintiff met the requirements of another listing in 20 C.F.R. § Part 404, Subpart P, App. 1, § 11.00: Listing 11.04 (vascular insult to the brain). (See id.) The ALJ considered each of the three criteria under which a claimant could satisfy the listing, noting that Plaintiff did not meet them because she did not present evidence showing “sensory or motor aphasia resulting in ineffective speech or communication; disorganization of motor function in two extremities; or marked limitation in functional domains.” (Id.)
The ALJ is not required “to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish equivalence.” Burch, 400 F.3d at 683 (citing Lewis, 236 F.3d at 514); see also Ford, 950 F.3d at 1157 (explaining that an ALJ does not have a sua sponte responsibility to discuss medical equivalency). Presenting evidence in an effort to establish equivalency to a listed impairment requires the claimant to offer a theory, “plausible or otherwise” as to how the claimant's medically determinable impairments equal a listed impairment. See Lewis, 236 F.3d at 514. In this case, Plaintiff offered no such theory and did not raise the issue of equivalency in the administrative process. Where, as here, Plaintiff did not present evidence to establish equivalency, the ALJ does not commit error by failing to analyze Plaintiff's impairments under any specific listing. See Kushlan v. Kijakazi, No. 22-35121, 2022 WL 16958621, at *1 (9th Cir. Nov. 16, 2022) (finding that the ALJ “is not required to compare a claimant's impairment ‘to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish equivalence,'” where the claimant argued that the ALJ erred when analyzing the claimant's migraine headaches at step three “under Listing 11.00, neurological impairments, instead of Listing 11.02, epilepsy.”). The Court therefore RECOMMENDS that the District Judge find that the ALJ did not commit error by not analyzing Plaintiff's migraines under Listing 11.02.
C. The ALJ's RFC Assessment is Supported by Substantial Evidence
1. The ALJ's RFC determination
The ALJ's decision contains two distinct analyses of Plaintiff's impairments. The first appears alongside the ALJ's step two analysis and addresses Plaintiff's mental health limitations according to the Paragraph B criteria. (See AR at 23-25.) The second occurs after the ALJ's step three determination and addresses Plaintiff's physical limitations. (See Id. at 25-31.) While the ALJ does not explicitly address Plaintiff's mental health impairments in his discussion of Plaintiff's RFC, he states that Plaintiff's assessed RFC “reflects the degree of limitation the undersigned has found in the ‘Paragraph B' mental function analysis.” (Id. at 23.)
After determining Plaintiff's functional limitations under the Paragraph B criteria, the ALJ discussed relevant findings from medical sources. (See id.) The ALJ found the opinions of the Disability Determination Services (“DDS”) psychological consultant and the findings of Dr. Durr to be persuasive. (See id. at 23-24.) The ALJ determined the DDS psychological consultant's statements that Plaintiff had “no severe mental health impairments” and “no functional mental health limitations that prevent the claimant from performing work activity” were not “consistent with the balance of mental health evidence in the record.” (Id. at 23.) Similarly, the ALJ described Dr. Durr's statements as persuasive, “because Dr. Durr is an accepted medical source whose conclusions are supported by direct examinations and the conclusions are generally consistent with the bulk of evidence in the record.” (Id. at 24.) Both discussions also include references to Plaintiff's reported daily activities as evidence of the lack of limitation. (See id. at 2324.)
The ALJ discounted the statements of Dr. Maria Rodriguez and Douglas Zabriskie, both of whom had treated Plaintiff by providing psychotherapy services. (See Id. at 2425.) The ALJ rejected Dr. Rodriguez's December 20, 2022 opinion recommending that Plaintiff “continue psychotherapy especially while transitioning back to school and/or other work.” (Id. at 24.) The ALJ found this opinion unpersuasive both “because it is not a statement regarding the claimant's ability to perform work” and because it “is not consistent with the clinical findings of other examining mental health sources.” (Id.) Specifically, the ALJ cited Plaintiff's October 16, 2019 evaluation by Dr. Jennifer Roby, which he found exemplified the “generally unremarkable mental status exams” found in the record. (Id.) The ALJ rejected Zabriskie's opinion that as of Plaintiff's last two sessions with Zabriskie, both conducted in November 2020, Plaintiff “was unable to return to a rigorous academic setting and would not have been able to successfully hold down a job.” (Id. at 25.) The ALJ found Zabriskie's statement unpersuasive “because it [wa]s not supported by mental health treatment notes” and because it was “not consistent with the clinical findings of other examining mental health professionals.” (Id.) To demonstrate this inconsistency, the ALJ cited Dr. Durr's examination, which did not find significant mental impairments. (See id.)
In formulating Plaintiff's physical RFC, the ALJ considered various medical opinions, finding the opinion of medical consultant, M. Mazuryk, MD persuasive because it was “consistent with the balance of the objective medical evidence in the record,” specifically with the records of James Lamar, MD and Natacha Akshoomoff, MD. (See id. at 30.) Dr. Mazuryk “opined the claimant [wa]s limited to lift/carry 20 pounds occasionally and 10 pounds frequently; stand/walk 6/8 hours in a regular work day and sit 6 hours in an 8-hour work day, occasionally climb ramps/stairs and ladders/ropes/scaffolding, and occasionally perform postural activities.” (Id.) Dr. Mazuryk recommended additional limitations around “concentrated exposure to cold, excessive noise, excessive vibrations, dusts, gases, fumes, and other airborne irritants, but not even moderate exposure to unprotected heights or hazardous machinery.” (Id.) The ALJ determined that this was consistent with Dr. Lamar's finding that Plaintiff's gait was “normal” and Dr. Akshoomoff's determination that Plaintiff's cognitive skills were “average to above average.” (Id. at 30-31.)
The ALJ discounted the initial opinion of DDS medical consultant A. Khong, MD based on additional medical records presented at Plaintiff's hearing. (Id. at 31.) Though Dr. Khong opined that Plaintiff had no severe physical impairments or physical functional limitations, the ALJ found the evidence presented at Plaintiff's administrative hearing persuasive to demonstrate limitations in Plaintiff's physical functional capacity. The ALJ then incorporated Dr. Mazuryk's opinion as to Plaintiff's limitations into the RFC, finding that Plaintiff could “perform light work as defined in 20 CFR 404.1567(b) except that [Plaintiff] is limited to occasionally postural activities, no concentrated exposure to cold, excessive noise, excessive vibrations, dusts, gases, fumes, and other airborne irritants, but not even moderate exposure to unprotected heights or hazardous machinery.” (AR at 25.)
2. The parties' arguments
Plaintiff asserts that the ALJ's RFC determination was not supported by substantial evidence. (See ECF No. 16 at 16.) Specifically, Plaintiff alleges that the ALJ did not rely on independent medical assessments and, in the absence of such assessments, impermissibly substituted his own judgment for that of an appropriate medical professional. (See id. at 17.) Plaintiff asserts that the record does not contain opinion evidence from a treating or examining physician and that the ALJ insufficiently explained the functional restrictions he chose to impose. (See id.) Plaintiff claims that the ALJ erred by not obtaining additional evidence to support his RFC finding, such as ordering a consultative examination or sending interrogatories to Agency physicians. (See id. at 17, 38.) Plaintiff alleges this error warrants reversal. (See id. at 17.)
Defendant argues that the evidence in the record is sufficient to support the ALJ's RFC determination. (See id. at 29.) In support, Defendant points to the ALJ's discussion of “hundreds of pages of records wherein the Plaintiff was examined by a treating physician.” (Id. at 27.) Defendant also cites Ninth Circuit precedent providing that it is the ALJ's role-not that of a claimant's physician-to determine the claimant's RFC. (Id. at 29-30 (quoting Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001)).) Defendant asserts, that, in addition to relying on records from Plaintiff's examining physician, the ALJ permissibly relied upon the prior administrative medical findings from DDS medical consultants. (ECF No. 16 at 30.) Additionally, Defendant contends that “[t]he ALJ's discussion of the evidence appropriately links the normal findings on medical imaging, normal general physical exams, intact gait, reports of improvement with conservative treatment, and functional activities of daily living to the RFC limitations,” and the analysis leading to those limitations “may be reasonably discerned” and should be upheld. (Id. at 31 (quoting Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012)).) Defendant further contends that, because Plaintiff's counsel failed to raise the issue of further record development, Plaintiff waived her objection on this issue. (See ECF No. 16 at 31.)
3. Applicable law
An RFC is an assessment of the sustained, work-related physical and mental activities the claimant can still do on a regular and continuing basis despite her limitations. 20 C.F.R. §§ 404.1520(e), 404.1545(a); see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (noting that the RFC reflects current “mental and physical capabilities”); SSR 96-8p, 1996 WL 374184, at *2. Thus, it represents the maximum amount of work the claimant is able to perform based on all the relevant evidence in the record. See id.; see also 20 C.F.R. § 404.1545(a)(3) (explaining that an RFC determination must be “based on all of the relevant medical and other evidence”).
The RFC is not a medical opinion, but a legal decision that is expressly reserved for the Commissioner. See 20 C.F.R. § 404.1526(c); Vertigan, 260 F.3d at 1049 (citing 20 C.F.R. § 404.1545) (“It is clear that it is the responsibility of the ALJ, not the claimant's physician, to determine residual functional capacity.”). Where “the record contains conflicting medical evidence, the ALJ is charged with determining credibility and resolving the conflict.” Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003); see also Morgan v. Comm'r of Soc. Sec. Admin, 169 F.3d 595, 603 (9th Cir. 1999) (holding that ALJ was “responsible for resolving conflicts” and “internal inconsistencies” within doctor's reports); Tommasetti, 533 F.3d at 1041 (noting “the ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence”).
The ALJ must include all of a claimant's impairments in the RFC assessment. 20 C.F.R. § 404.1545; see also Bray, 554 F.3d at 1228. Because the assessment of a claimant's RFC is essential to steps four and five of the sequential analysis in determining whether a claimant can still work despite severe medical impairments, an improper evaluation of the claimant's ability to perform specific work-related functions “could make the difference between a finding of ‘disabled' and not disabled.'” SSR 968p, 1996 WL 374184, at *4. Accordingly, “an RFC that fails to take into account a claimant's limitations is defective.” Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009); see also Martin v. Comm'r of Soc. Sec. Admin., 472 Fed.Appx. 580, 580 (9th Cir. 2012) (concluding that the ALJ erred in formulating the claimant's RFC by failing to incorporate medical opinion regarding the claimant's work limitations, and did not provide specific and legitimate reasons for rejecting the opinion; finding that the VE's testimony based on flawed RFC had no evidentiary value). In determining whether an ALJ committed error in assessing the RFC, the relevant inquiry is whether the medical evidence supports the ALJ's finding. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) (finding that the RFC assessment adequately captures restrictions if it is consistent with the concrete limitations identified in the medical opinions); see also Schneider v. Comm'r of Soc. Sec. Admin., 433 Fed.Appx. 507, 509 (9th Cir. 2011) (concluding that the ALJ's failure to address claimant's migraines was harmless because medical record did not support finding that migraines would affect the claimant's functioning at work).
4. Analysis
The ALJ determined that Plaintiff had the RFC “to perform light work as defined in 20 CFR 404.1567(b) except that the claimant is limited to occasionally postural activities, no concentrated exposure to cold, excessive noise, excessive vibrations, dusts, gases, fumes, and other airborne irritants, but not even moderate exposure to unprotected heights or hazardous machinery.” (AR at 25.) At step two, the ALJ concluded that Plaintiff suffered from the severe impairments of migraines, post-concussion syndrome, and the late effects of injuries to the central nervous system. (See id. at 19.) This allowed the sequential evaluation process to continue in a manner that would have no impact on the ensuing analysis, as the ALJ is required to consider both severe and non-severe impairments in his RFC analysis. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (“The RFC therefore should be exactly the same regardless of whether certain impairments are considered ‘severe' or not.”) Where an ALJ discusses mental impairments under the Paragraph B criteria and determines that they do not cause more than “mild limitation,” the RFC need not include additional analysis related to these impairments. See Woods v. Kijakazi, 32 F.4th 785, 794 (9th Cir. 2022); see also Janko v. Kijakazi, Case No.: 20-cv-0669-BLM, 2021 WL 4245386, at *3 (S.D. Cal. Sept. 17, 2021) (quoting Kendall v. Saul, Case No. 1:19-cv-01485-SKO, 2021 WL 73628, at *13 (E.D. Cal. Feb. 25, 2021)) (“consideration does not require the inclusion of every impairment in the final RFC if the record indicates ‘the non-severe impairment does not cause a significant limitation in the claimant's ability to work.'”). Because the ALJ determined at step two that Plaintiff's “medically determinable mental impairments cause[d] no more than ‘mild' limitation in any of the functional areas,” (AR at 23), and because the record revealed that Plaintiff's mental impairments did not cause any significant limitations on Plaintiff's ability to work, the ALJ was not required to further discuss Plaintiff's mental impairments in the final RFC. See Numan v. Saul, Case No.: 20-CV-1978-WVG, 2022 WL 891111, at *6 (S.D. Cal. Mar. 24, 2022); McIntosh v. Berryhill, No. EDCV 17-1654 AGR, 2018 WL 3218105, at *4 (C.D. Cal. June 29, 2019); Banks v. Berryhill, Case No. CV 17-05535-JDE, 2018 WL 1631277, at *4 (C.D. Cal. Apr. 2, 2018). Plaintiff is thus unable to show that the ALJ erred in his consideration of Plaintiff's mental health impairments when formulating Plaintiff's RFC.
Although Plaintiff asserts that the record is insufficient to support the ALJ's RFC finding because it does not contain opinion evidence from a treating or examining physician, nor does it contain the opinion of a physical consultative examiner, (ECF No. 16 at 17), Plaintiff ignores the ALJ's unequivocal references to evidence from treating and examining physicians, (see e.g., AR at 27-28 (referencing the opinions of Dr. Joseph Behymer, a treating physician, James Lamar, an examining physician, and Dr. Natacha Akshoomoff, a treating physician)). Further, Plaintiff's argument that the ALJ erred by not further developing the record, (ECF No. 16 at 17), misstates the ALJ's obligation. The ALJ's burden to further develop the record is only triggered where there is “ambiguous evidence or when the record is inadequate to allow for the proper evaluation of evidence.” See Mayes, 276 F.3d at 459-60 (quoting Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)). Plaintiff has not asserted claims that any specific parts of the record are either ambiguous or inadequate, nor can she.
The ALJ's RFC determination contains clear references to medical evidence supporting limitations based on Plaintiff's physical symptoms. (See AR at 27-31.) The ALJ's decision summarizes the opinion of DDS medical consultant Dr. Mazuryk, which the ALJ found persuasive and incorporated into the RFC. (See id. at 25, 30.) Although the ALJ did not explicitly state that he derived the functional limitations in the RFC from Dr. Mazuryk's opinion, the ALJ is not required to provide such a clear recitation of specific terms. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (explaining that reviewing courts may draw “specific and legitimate inferences” around the relationship between and use of the analyses of acceptable medical sources contained within an ALJ's explanation of a plaintiff's RFC).
The ALJ may rely on the opinion of medical consultants when formulating Plaintiff's RFC. See Bray, 554 F.3d at 1227 (affirming where the ALJ relied “in large part” on the opinion of a DDS medical consultant). Moreover, contrary to Plaintiff's assertion that the ALJ “did not rely on any independent medical assessments that set forth comparable findings,” (ECF No. 16 at 17), the ALJ's opinion identifies consistencies between Dr. Mazuryk's opinion and the findings of Dr. James Lamar and Dr. Natacha Akshoomoff, (see AR at 30-31). Specifically, the ALJ found the Dr. Mazuryk's findings were consistent with and supported by Dr. Lamar's report that Plaintiff's “gait was normal and reported muscle strength was 5/5 in the anterior and posterior muscle groups.” (Id. at 31, 357.) The ALJ also found that Dr. Mazuryk's opinion was consistent with Dr. Akshoomoff's determination that Plaintiff's IQ was in the average range and Plaintiff demonstrated academic and cognitive skills that were either average or above average. (Id. at 31, 552-53.) Though these findings are not opinions mirroring Dr. Mazuryk's, the Ninth Circuit has endorsed the ability of ALJs to interpret medical evidence to support medical opinions. See Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022) (“ALJs are, at some level, capable of independently reviewing and forming conclusions about medical evidence to discharge their statutory duty to determine whether a claimant is disabled and cannot work.”).
Accordingly, the ALJ supported Plaintiff's assessed RFC with substantial evidence and did not commit error. The Court therefore RECOMMENDS that the District Judge find that the ALJ's RFC determination was supported by substantial evidence.
VI. CONCLUSION & RECOMMENDATION
For the reasons set forth above, the Court RECOMMENDS that the Commissioner's decision be AFFIRMED consistent with this Report and Recommendation.
Additionally, IT IS ORDERED that no later than February 26, 2025 , any party to this action may file written objections with the Court and serve a copy on all parties. The document shall be captioned “Objections to Report and Recommendation.”
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than March 5, 2025 . The parties are advised that failure to file objections within the specified time may waive the right to raise these objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
IT IS SO ORDERED