1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 SUSAN DEVERA, Case No. 1:21-cv-00823-CDB (SS)

9 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT AND

10 v. AFFIRMING THE COMMISSIONER

11 COMMISSIONER OF SOCIAL (Docs. 14, 15)

SECURITY,

12 Defendant. 13

14 15 Plaintiff Susan Devera (“Plaintiff”) seeks judicial review of the decision of the 16 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 17 disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits. (Doc. 18 1). The matter is before the Court on the certified administrative record (“AR”). (Doc. 9). 19 Plaintiff filed a motion for summary judgment on February 2, 2022. (Doc. 14). Defendant filed 20 an opposition on March 17, 2022. (Doc. 15). Plaintiff filed a reply brief on March 31, 2022. 21 (Doc. 16). For the reasons set forth below, the Court denies Plaintiff’s motion for summary 22 judgment and affirms the commissioner.1 23 I. Background2 24 On or around September 14, 2015, Plaintiff protectively filed applications for DIB. (AR 25 34, 373). Plaintiff’s applications alleged disability beginning January 15, 2014. (AR 373). The

26 1 The parties have consented to the jurisdiction of a U.S. magistrate judge for all proceedings in this action, in accordance with 28 U.S.C. § 636(c)(1). (Doc. 8). 27

2 The procedural background is recounted to the extent that it is relevant to Plaintiff’s 1 claims were initially denied on January 27, 2016, and upon reconsideration on August 4, 2016. 2 (AR 198, 207). On August 16, 2016, Plaintiff filed a request for hearing (AR 212-13), and on 3 November 1, 2017, an administrative law judge (“ALJ”) held a telephonic hearing. (AR 86-110). 4 Plaintiff testified at the hearing with the assistance of counsel. Id. On June 13, 2018, the ALJ 5 issued a decision finding Plaintiff “not disabled.” (AR 172-190). However, the Appeals Council 6 remanded the matter to a different ALJ on November 1, 2019. (AR 193-94). The Appeals 7 Council found the ALJ erred because, despite giving substantial and great weight to the 8 psychological consultative examiner’s opinion, Plaintiff’s residual functional capacity (“RFC”) 9 contained no assessment as to her mental work-related activities. (AR 193). The Appeals 10 Council further found that although the ALJ gave substantial weight to the opinions of the 11 reconsideration level consultant, the ALJ nevertheless rejected that consultant’s opinion that 12 Plaintiff could frequently handle and finger and could occasionally crawl without providing any 13 rationale. (AR 193-94). The Appeals Council noted Plaintiff’s argument that the ALJ’s 14 appointment violated the Appointments Clause of the U.S. Constitution. (AR 194). 15 The Appeals Council remanded Plaintiff’s case to a different ALJ, believing that the 16 remand would cure any constitutional defect since on July 16, 2018, the Acting Commissioner of 17 Social Security ratified all Administrative Law Judge appointments and approved them as her 18 own. Id. In addition, the Appeals Council directed the newly assigned ALJ to give further 19 consideration to Plaintiffs maximum RFC during the entire period of disability and provide a 20 rationale with specific references to the record in support of her assessed limitations. (AR 194). 21 Furthermore, the Appeals Council directed the ALJ to extend Plaintiff an opportunity for a new 22 hearing, take any further action to complete the administrative record, and issue a new decision. 23 (AR 194). 24 The newly assigned ALJ held a hearing on March 3, 2020 (AR 75), and again on June 15, 25 2020. (AR 72). During the hearing on June 15, 2020, Plaintiff appeared in person and was 26 represented by an attorney. (AR 54). A vocational expert (“VE”) also appeared and testified. Id. 27 The ALJ issued an adverse decision on July 23, 2020. (AR 34). Plaintiff submitted evidence to 1 to review the ALJ’s decision. (AR 2). Thereafter, Plaintiff initiated this action on May 20, 2021. 2 (Doc. 1). 3 A. The ALJ’s Decision 4 The ALJ engaged in the five-step sequential evaluation process for determining whether 5 an individual is disabled under 20 C.F.R. § 404.1520(a). At step one, the ALJ found that Plaintiff 6 did not engage in substantial gainful activity since her alleged onset date. (AR 20). At step two, 7 the ALJ found that Plaintiff’s degenerative disc disease of the lumbar and thoracic spine, right 8 carpal tunnel syndrome, cervical degenerative disc disease with radiculopathy, and right shoulder 9 degenerative disc disease constituted severe impairments. (AR 20). The ALJ found that 10 Plaintiff’s hypertension, diabetes, and eye health/vision issues were not severe impairments. Id. 11 In addition, the ALJ noted that “[a]lthough the claimant did not endorse having a disabling 12 mental health condition during her initial application for disability benefits, during the most 13 recent hearing, the claimant reported that she experienced mental health symptoms that included 14 depression, difficulty focusing, and difficulty remembering.” (AR 22 citing AR 402-08; AR 66). 15 The ALJ further noted that during a mental health consultative examination in June 2016, the 16 examiner diagnosed Plaintiff with mental disorders consisting of history of physical abuse of 17 adult, by history (victim); dysthymic disorder, late onset; pain disorder associated with both 18 psychological factors and a general medical condition, chronic; and major depressive disorder, 19 recurrent mild severity. (AR 22). 20 However, the ALJ acknowledged that Plaintiff never reported that she spent time in a 21 psychiatric hospital, nor did she endorse receiving mental health treatment aside from medication, 22 which was prescribed about eight months prior to the examination – despite her reports of having 23 an abusive husband and a son with mental health problems. Id. The ALJ cited to an examination 24 conducted by Dr. Philip Cushman in June 2016 during which Plaintiff appeared to be only mildly 25 depressed and had at least low-average intellect. The examination results supported only mild 26 difficulties with verbal concentration skills. The ALJ characterized Dr. Cushman’s report of 27 Plaintiff’s activities of daily living to reflect that Plaintiff was “rather independent.” (AR 22 1 The ALJ further found that aside from the mental health consultative examiner, no 2 acceptable medical source diagnosed Plaintiff with a mental health condition based on objective 3 evidence. Likewise, the ALJ found that Plaintiff had minimal mental health treatments, which 4 consisted largely of medication only. (AR 22). Plaintiff had many mental/psychological statuses 5 that were normal during examinations, reported a normal mood through those examinations and 6 even denied having depression and/or anxiety during some examinations. (AR 22-23). Plaintiff 7 was not specifically treated for memory problems and denied having memory issues during 8 certain examinations. Plaintiff presented as largely cooperative, alert/oriented and was never 9 observed to be disheveled. (AR 23 citing 529, 584, 726, 771, 760, 848, 907, 920, 1005 1034, 10 1125, 1262, 1573, 1580). Ultimately, the ALJ found that Plaintiff did not have a medically 11 determinable mental impairment, and even if she did, it would not be severe. (AR 23). 12 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 13 impairments that meet or medically equal the severity of one of the listed impairments in 20 14 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ paid particular attention to listing 1.02 for major 15 dysfunction of a joint but found that Plaintiff could not meet or medically equal that listing as the 16 record did not demonstrate an inability to perform fine or gross movements effectively, or an 17 inability to ambulate effectively. (AR 24). Likewise, the ALJ considered listing 1.04, for 18 degenerative disc disease, and found that the record failed to establish the listing’s requirements. 19 Id. 20 The ALJ considered listing 11.14A which requires peripheral neuropathy with 21 disorganization of motor function in two extremities resulting in an extreme limitation in the 22 ability to stand up from a seated position, balance while standing or walking, or use the upper 23 extremities. The ALJ also considered listing 11.14B but found that the record failed to satisfy the 24 requirements of the listing. (AR 24). 25 The ALJ found Plaintiff’s RFC to be as follows: 26 After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work 27 as defined in 20 CFR 404.1567(b) and 416.967(b), except the claimant can lift 20 pounds occasionally, 10 pounds frequently; 1 stairs; only occasional ladders, ropes or scaffolds; frequent balance; occasional stoop, kneel, crouch, or crawl; frequent handling or 2 fingering; no work at heights or with dangerous moving machinery. 3 (AR 24). 4 At step four, the ALJ found that Plaintiff’s medically determinable impairments could 5 reasonably be expected to cause her alleged symptoms, however, Plaintiff’s statements 6 concerning the intensity, persistence and limiting effects of those symptoms were not consistent 7 with the medical evidence and other evidence of record. (AR 26). Specifically, the ALJ found 8 that Plaintiff’s activities of daily living did not support her subjective complaints. The ALJ noted 9 a discrepancy between Plaintiff’s responses in an exertional questionnaire where she claimed that 10 her family members did grocery shopping for her, and a function report in which she reported that 11 she went shopping in general, including grocery shopping, twice a month. (AR 26). Likewise, 12 Plaintiff endorsed going shopping during the hearing, but with assistance. The ALJ further noted 13 that Plaintiff indicated in her function report that she prepared meals daily, but with assistance in 14 only some tasks, like opening cans. (AR 26 citing 417-21, 422-26, 453-58). 15 As for opinion evidence, the ALJ gave little weight to the opinion of Dr. Philip M. 16 Cushman, Ph.D., who performed a mental health consultative exam on Plaintiff on June 20, 2016. 17 (AR 29). Dr. Cushman diagnosed Plaintiff with physical abuse of adult by history (victim); 18 dysthymic disorder, late onset; pain disorder associated with both psychological factors and a 19 general condition, chronic; and major depressive disorder, recurrent, mild severity. (AR 756). 20 Dr. Cushman opined that as a result of Plaintiff’s diagnoses, she will have difficulties performing 21 detailed or complex tasks in a workplace but will nevertheless be able to complete them. In 22 addition, Dr. Cushman opined that Plaintiff would struggle with regular work attendance and 23 working a normal workday or workweek due to her pain, malaise, and confusion. (AR 29, 756). 24 The ALJ did not find Dr. Cushman’s opinion persuasive since he based his opinion on a 25 one-time examination that occurred early within the full period of disability at issue. In addition, 26 Dr. Cushman did not review much of the medical record in rendering his opinion. Dr. Cushman’s 27 opinion was vague in some respects, since it is not clear what extent of any limitation existed when he stated that Plaintiff would have difficulties with certain things. The ALJ also found that 1 Dr. Cushman’s opinion was inconsistent with his own objective findings or the record as a whole. 2 (AR 29). 3 In addition, the ALJ found that Dr. Cushman relied heavily on Plaintiff’s subjective 4 complaints to render mental health diagnoses, including Plaintiff’s reports of physical pain. 5 However, Dr. Cushman objectively found Plaintiff to be only mildly depressed. The ALJ also 6 found that the record as a whole showed that Plaintiff complained of being depressed at times but 7 received minimal treatment – consisting of just medication. Plaintiff did not receive mental 8 health therapy and had many mental/psychological statuses that were normal. (AR 29 citing AR 9 529, 584, 726, 752-56, 760, 828, 848, 907, 920, 1005, 1034, 1125, 1262, 1573, 1580). 10 Likewise, the ALJ gave little weight to Regina Flowers, a family nurse practitioner (NP) 11 and Plaintiff’s treating healthcare provider. (AR 30-31). NP Flowers completed a form relating 12 to Plaintiff’s functional capacity in which she reported that Plaintiff’s symptoms and limitations 13 first appeared on June 1, 2018, over four years after Plaintiff’s alleged onset date of January 15, 14 2014. (AR 1655). NP Flowers reported that Plaintiff was mildly limited in her ability to 15 understand, remember, or apply information; mildly limited in her ability to interact with others; 16 and markedly limited in her ability to concentrate, persist, or maintain pace. (AR 32 citing 1657- 17 58). NP Flowers did not provide a limitation regarding Plaintiff’s ability to adapt or manage but 18 did comment that Plaintiff’s depression and mood swings make her emotions unstable. NP 19 Flowers assessed that Plaintiff’s short-term memory was mildly limited and that her long-term 20 memory was moderately limited. 21 NP Flowers opined that Plaintiff would not be limited in remembering locations and 22 work-like procedures but would be moderately limited in understanding and carrying out very 23 short and simple instructions and markedly limited in understanding detailed but uninvolved 24 written or oral instructions. NP Flowers further indicated that Plaintiff would be off task for more 25 than 50% of the workday. She also opined that Plaintiff would be absent four or more days per 26 month. (AR 32 citing AR 1659). 27 The ALJ gave little weight to NP Flowers’s opinion. The ALJ reasoned in part that NP 1 Flowers did not discuss any objective examination findings. The ALJ found NP Flowers’ opinion 2 to be vague since it did not provide any specific mental function limitations. (AR 32). 3 Furthermore, the ALJ determined that NP Flowers is not an acceptable medical source as a family 4 nurse practitioner, since there is no indication that she is knowledgeable of or experienced in the 5 SSA’s rules and regulations to assess mental health functioning. (AR 32). 6 Separately, the ALJ found that NP Flowers’ opinion was not consistent with the record as 7 a whole. For example, the ALJ pointed to portions of the record that reveal minimal mental 8 health treatment – consisting largely of medication only but no formal mental health therapy. 9 Additionally, Plaintiff has several mental/psychological statuses that were normal. (AR 33 citing 10 529, 584, 526, 752-56, 760, 828, 848, 907, 920, 1005, 1034, 1125, 1262, 1573, 1580). During the 11 hearing, Plaintiff reported that her depression stemmed from her physical issues, and she 12 appeared to be independent in her activities of daily living, subject to her physical problems as 13 opposed to any mental issues. The ALJ found that the medical record does not support the 14 limitations set out by NP Flowers. (AR 33). 15 At step five, the ALJ found that Plaintiff is capable of performing past relevant work as a 16 retail sales clerk. (AR 33). Thus, the ALJ found that Plaintiff was not disabled. 17 II. Standard of Law 18 A. The Disability Standard 19 Disability Insurance Benefits and Supplemental Security Income are available for every 20 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) and 1381(a). An individual 21 is “disabled” if unable to “engage in any substantial gainful activity by reason of any medically 22 determinable physical or mental impairment …”3 Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 23 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). To 24 achieve uniformity in the decision-making process, the Social Security regulations set out a five- 25 step sequential evaluation process to be used in determining if an individual is disabled. See 20 26 3 A “physical or mental impairment” is one resulting from anatomical, physiological, or 27 psychological abnormalities that are demonstrated by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). 1 C.F.R. § 404.1520; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). 2 Specifically, the ALJ is required to determine:

3 (1) whether a claimant engaged in substantial gainful activity during the period of 4 alleged disability, (2) whether the claimant had medically determinable “severe” impairments, (3) whether these impairments meet or are medically equivalent to one 5 of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) whether the claimant retained the RFC to perform past relevant work and (5) 6 whether the claimant had the ability to perform other jobs existing in significant numbers at the national and regional level. 7 8 Stout v. Comm’r. Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 9 on a claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citing 10 Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009)). 11 Before making the step four determinations, the ALJ first must determine the claimant’s 12 RFC. 20 C.F.R. § 416.920(e). The RFC is the most a claimant can still do despite their 13 limitations and represents an assessment based on all relevant evidence. 20 C.F.R. §§ 14 404.1545(a)(1), 416.945(a)(1). The RFC must consider all of the claimant’s impairments, 15 including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2). E.g., Wells v. 16 Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (“These regulations inform us, first, that in 17 assessing the claimant’s RFC, the ALJ must consider the combined effect of all of the claimant’s 18 medically determinable impairments, whether severe or not severe.”). The RFC is not a medical 19 opinion. 20 C.F.R. § 404.1527(d)(2). Rather, it is a legal decision that is expressly reserved to 20 the Commissioner. 20 C.F.R. § 404.1546(c); see Vertigan v. Halter, 260 F.3d 1044, 1049 (9th 21 Cir. 2001) (“[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine 22 residual functional capacity.”) 23 At step five, the burden shifts to the Commissioner to prove that Plaintiff can perform 24 other work in the national economy given the claimant’s RFC, age, education, and work 25 experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). To do this, the ALJ can use 26 either the Medical-Vocational Guidelines or rely upon the testimony of a VE. Lounsburry v. 27 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th 1 credibility, resolving conflicts in medical testimony and for resolving ambiguities.’” Ford, 950 2 F.3d at 1149 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). 3 B. Standard of Review 4 Congress has provided that an individual may obtain judicial review of any final decision 5 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In 6 determining whether to reverse an ALJ’s decision, a court reviews only those issues raised by the 7 party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A 8 court may set aside the Commissioner’s denial of benefits when the ALJ’s findings are based on 9 legal error or are not supported by substantial evidence. Tackett v. Apfel, 180 F.3d 1094, 1097 10 (9th Cir. 1999). 11 “Substantial evidence is relevant evidence which, considering the record as a whole, a 12 reasonable person might accept as adequate to support a conclusion.” Thomas v. Barnhart, 278 13 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 14 1457 (9th Cir. 1995)). “[T]he threshold for such evidentiary sufficiency is not high.” Biestek v. 15 Berryhill, 139 S. Ct. 1148, 1154 (2019). Rather, “[s]ubstantial evidence means more than a 16 scintilla, but less than a preponderance; it is an extremely deferential standard.” Thomas v. 17 CalPortland Co., 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted). 18 “[A] reviewing court must consider the entire record as a whole and may not affirm 19 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 20 1159 (9th Cir. 2012) (internal quotations and citations omitted). “If the evidence ‘is susceptible 21 to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.’” Ford, 22 950 F.3d at 1154 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). Even if the 23 ALJ has erred, the Court may not reverse the ALJ’s decision where the error is harmless. Stout, 24 454 F.3d at 1055-56. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 25 nondisability determinations.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 26 (quotation and citation omitted). The burden of showing that an error is not harmless “normally 27 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 1 III. Discussion 2 Plaintiff advances two assignments of error for the Court’s review: (1) the ALJ’s findings 3 that Plaintiff’s mental health impairments, including those related to her complaints of chronic 4 pain, did not result in any mental limitation on her ability to work were not supported by 5 substantial evidence; and (2) the ALJ and Appeals Council’s decisions are constitutionally 6 defective due to a statutory scheme that violates separation of powers. 7 A. Whether The ALJ Improperly Evaluated Plaintiff’s Alleged Mental Impairments 8 Plaintiff contends that the ALJ erred by not accounting for and incorporating into the RFC 9 restrictions pertaining to her alleged mental impairments, which are related to her physical pain 10 limitations. Plaintiff further asserts that the ALJ erred by not crediting Dr. Cushman and NP 11 Flowers with significant weight. 12 “At step two of the five-step sequential inquiry, the Commissioner determines whether the 13 claimant has a medically severe impairment or combination of impairments.” Smolen v. Chater, 14 80 F.3d 1273, 1289-90 (9th Cir. 1996) (citing Bowen, 482 U.S. at 140-41). “[A]t the step two 15 inquiry, … the ALJ must consider the combined effect of all of the claimant’s impairments on her 16 ability to function, without regard to whether each alone is sufficiently severe.” Id. at 1290 17 (citations omitted). 18 “[A]n impairment is not severe if it does not significantly limit [the claimant’s]…ability to 19 do basic work activities.” Id. (citing 20 C.F.R. §§ 404.1520(c); 404.1521(a)). Basic work 20 activities are the abilities and aptitudes needed to do most jobs. 20 C.F.R. § 416.922(b). 21 Examples of “basic work activities” include (1) “[p]hysical functions such as walking, standing, 22 sitting, lifting, pushing, pulling, reaching, carrying, or handling;” (2) “[c]apacities for seeing, 23 hearing, and speaking;” (3) “[u]nderstanding, carrying out, and remembering simple 24 instructions;” (4) “[u]se of judgment;” (5) “[r]esponding appropriately to supervision, co-workers 25 and usual work situations; and” (6) “[d]ealing with changes in a routine work setting.” 20 C.F.R. 26 § 416.922(b)(1-6). 27 “An impairment or combination of impairments can be found ‘not severe’ only if the 1 [individual’s] ability to work.’” Smolen, 80 F.3d at 1290 (quoting Social Security Ruling [“SSR”] 2 85-28 “SSR 85-28”). Furthermore, “an ALJ may find that a claimant lacks a medically severe 3 impairment or combination of impairments only when his conclusion is ‘clearly established by 4 medical evidence.’” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (citing Social Security 5 Ruling 85-28 “SSR 85-28”); cf. Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (finding 6 claimant “failed to meet his burden of establishing disability” where “none of the medical 7 opinions included a finding of impairment, a diagnosis, or objective test results”). 8 “Great care should be exercised in applying the not severe impairment concept.” SSR 85- 9 28. “The Commissioner has stated that ‘[i]f an adjudicator is unable to determine clearly the 10 effect of an impairment or combination of impairments the individual’s ability to do basic work 11 activities, the sequential evaluation should not end with the not severe evaluation step.’” Webb, 12 433 F.3d at 687 (alteration in original) (quoting SSR 85-28). 13 Ultimately, “[t]he severity regulation increases the efficiency and reliability of the 14 evaluation process by identifying at an early stage those claimants whose medical impairments 15 are so slight that it is unlikely they would be found to be disabled even if their age, education, and 16 experience were taken into account.” Yuckert, 482 U.S. at 153. In other words, “the step-two 17 inquiry is a de minimis screening device to dispose of groundless claims.” Smolen, 80 F.3d at 18 1290 (citing Yuckert, 482 U.S. at 153-54). However, “[t]he plaintiff has the burden of establishing 19 the severity of the impairment.” Cookson v. Comm’r of Soc. Sec., No. 2:12-cv-2542-CMK, 2014 20 WL 4795176, at *2 (E.D. Cal. Sept. 25, 2014). 21 In this case, Plaintiff argues that the ALJ rejected NP Flowers and Dr Cushman’s opinions 22 for legally insufficient reasons. In general, an ALJ must consider the limiting effect of all 23 impairments, including those that are non-severe, in assessing a claimant’s RFC. See 20 C.F.R. §§ 24 404.1545(a)(2); 416.945(a)(2). However, the ALJ is not required to include limitations in the 25 RFC if the record supports a conclusion that the non-severe impairments do not cause a 26 significant limitation in the claimant’s ability to work. See Koshak v. Berryhill, No. CV 17-6717- 27 AFM, 2018 WL 4519936, at *8 (C.D. Cal. Sept. 19, 2018) (finding that the ALJ was not required 1 by substantial evidence to justify non-inclusion); Banks v. Berryhill, No. CV 17-05535-JDE, 2018 2 WL 1631277, at *4 (C.D. Cal. Apr. 2, 2018) (“Because Plaintiff’s mental impairment was not 3 severe and did not cause significant impairment, the ALJ was not required to include it in 4 Plaintiff’s RFC.”). If the ALJ “actually reviews the record and specifies reasons supported by 5 substantial evidence for not including the non-severe impairment [in the RFC determination], the 6 ALJ has not committed legal error.” Medlock v. Colvin, No. CV 15-9609-KK, 2016 WL 6137399, 7 at *5 (C.D. Cal. Oct. 20, 2016); McIntosh v. Berryhill, No. EDCV 17-1654 AGR, 2018 WL 8 3218105, at *4 (C.D. Cal. June 19, 2018) (finding that ALJ’s decision to omit non-severe mental 9 impairment in the RFC was supported by substantial evidence). 10 Since Plaintiff filed her application before March 27, 2017, 20 C.F.R. § 404.1527 applies. 11 Melynda G v. Kijakazi, No. 5:20-cv-00890-JC, 2022 WL 911585, at *4 n.7 (C.D. Cal. Mar. 29, 12 2022). Under this operative regulation, the weight given to medical opinions depends in part on 13 whether they are proffered by treating, examining, or non-examining professionals. Holohan v. 14 Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 15 1996). Generally, a treating physician’s opinion carries more weight than an examining 16 physician’s opinion, and an examining physician’s opinion carries more weight than a non- 17 examining physician’s opinion. Holohan, 246 F.3d at 1202. To evaluate whether an ALJ 18 properly rejected a medical opinion, in addition to considering its source, the court considers 19 whether (1) contradictory opinions are in the record, and (2) clinical findings support the 20 opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical 21 professional only for “clear and convincing” reasons. Lester, 81 F.3d at 830-31. However, a 22 contradicted opinion of a treating or examining professional may be rejected for “specific and 23 legitimate reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 24 675 (9th Cir. 2017) (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)); 25 see Lester, 81 F.3d at 830-31. “The ALJ can meet this burden by setting out a detailed and 26 thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 27 and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 1 1. Whether the ALJ Erred in her Treatment of NP Flowers’ Opinion. 2 Plaintiff argues that since NP Flowers is her treating provider, the ALJ was to afford her 3 opinions more weight because under the applicable regulations, treating providers “are likely to 4 be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s] 5 medical impairment(s) and may bring a unique perspective of the medical evidence...” 20 C.F.R. 6 § 404.1527(c)(2). 7 The Commissioner counters that the ALJ correctly identified NP Flowers as a 8 nonacceptable medical source under the applicable regulations. (Doc 15 p. 15) (citing AR 33). 9 The Court agrees with the Commissioner. A nurse practitioner is not an acceptable medical 10 source under the applicable regulations for claims filed prior to March 27, 2017. 20 C.F.R. §§ 11 404.1502(a)(7); 404.1527. Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996) (“Acceptable 12 medical sources specifically include licensed physicians and licensed psychologists, but not nurse 13 practitioners.”); accord Coleman v. Saul, 979 F.3d 751, 757 (9th Cir. 2020) (noting that under the 14 applicable regulations prior to March 27, 2017, nurse practitioners qualified as “other sources” 15 and ALJ was only required to provide “germane reasons” to discount her testimony). 16 After noting that NP Flowers was not an acceptable medical source, the ALJ provided 17 germane reasons for discounting her opinion. Specifically, the ALJ noted that (1) NP Flowers 18 provided her opinion through a check-the-box form with little narrative support; (2) her opinion 19 was vague and did not cite specific mental function limitations; (2) her opinion did not discuss 20 any specific objective examination findings; (3) there is no indication that NP Flowers is 21 knowledgeable in the rules and regulations of the SSA to assess mental health functioning; and 22 (4) her opinion is not consistent with the record as a whole. (AR 32). 23 The ALJ also cited to various mental/psychological statuses in the record documenting 24 Plaintiff as cooperative and alert. (AR 33 citing AR 529, 584, 726,755,760, 828, 848, 773, 907, 25 920, 1005, 1034, 1125, 1262, 1573, 1580). Specifically, the ALJ found NP Flowers’ opinion that 26 Plaintiff had a marked limitation to concentrate, persist, or maintain pace to be inconsistent with 27 the record, which frequently showed Plaintiff as alert and attentive. (AR 33). The Court finds that 1 so. 2 2. Whether the ALJ Erred in her Treatment of Dr. Cushman’s Opinion 3 Plaintiff separately argues that the ALJ’s analysis of Dr. Cushman’s report was 4 “particularly irksome and inapt,” including by rejecting Dr. Cushman’s opinions on the grounds 5 that they are based on Plaintiff’s subjective complaints. (Doc. 14-2 pp. 16-17, citing Ryan, 528 6 F.3d at 1200). Plaintiff also argues that the ALJ improperly discounted Dr. Cushman’s opinion on 7 vagueness grounds and because certain aspects of the opinion were undermined by Plaintiff’s 8 activities of daily living. Id. p. 18 (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)) 9 (rejecting ALJ’s conclusion that claimant’s activities suggested an ability to work because they 10 were sporadic). Instead, Plaintiff contends that the irregularity of her activities is evidence of her 11 diminished capacity to perform anything more than “fairly isolated tasks, with assistance.” Id. 12 An ALJ may use a claimant’s daily activities to discredit her subjective symptom testimony if the 13 reported activities contradict the claimant’s other testimony, or if the activities meet the threshold 14 for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). However, “the 15 mere fact that plaintiff has carried on certain daily activities … does not in any way detract from 16 her credibility as to her overall disability.” Id. (quoting Vertigan, 260 F.3d at 1050). 17 Plaintiff further criticizes the ALJ’s references to normal mental and psychological 18 statuses from treatment appointments as “highly selective and inapt.” (Doc. 14-2 p. 19). Plaintiff 19 argues that the various examples brought by the ALJ as evidence of normal psychological 20 statuses stem from medical visits unrelated to her mental health, such as eye exams (AR 828, 21 1125), back pain exams, (AR 528), and exams for high blood sugar (AR 724). Thus, Plaintiff 22 argues, the ALJ failed to provide “specific and legitimate” reasons for rejecting limitations 23 described by Dr. Cushman. Plaintiff points to the following portions of the record as evidence of 24 the connection between her pain and her mental health limitations. (Doc. 14-2 p. 16 citing AR 25 47, 683, 685, 689, 754, 1651, 756, 455, 528, 683, 577, 889, 1537, 567, 1572, 1589, 1644, 1656). 26 Were an ALJ to cite exclusively to a claimant’s normal mental status findings at physical 27 examinations, but the record contained mental health examinations describing abnormal results 1 cherry-picking. E.g., Landis v. O’Malley, No. 1:23-cv-00881-SKO, 2024 WL 1138183, at *7 2 (E.D. Cal. Mar. 15, 2024) (finding ALJ wholly ignored evidence of abnormal mental health 3 examinations and focused only on normal mental health findings assessed during medical visits 4 relating to claimant’s physical conditions). Here, in contrast, many of the record citations 5 Plaintiff offers in support of her claimed error document findings made during medical visits 6 relating to physical conditions. For example, Plaintiff’s citations to AR 47, 528 and 1572 pertain 7 to her visits for low back and shoulder pain, AR 577 relates to a microbiology exam, and AR 8 1589 constitutes physical therapy records. (Doc. 14-2 p. 19). 9 The Court acknowledges that Plaintiff plausibly argues a reasonable reading of the records 10 to which she refers and the medical opinions and diagnoses referenced therein reflect the 11 interconnectedness between her physical pain and her mental health limitations. (Doc. 14-2 p. 12 16). But the ALJ’s conclusion that Plaintiff engaged in conservative treatment by citing to 13 physical health exams is just as responsive to the issue of interconnectedness. This is not a 14 situation where the ALJ isolated a “specific quantum” of evidence but where the record as a 15 whole supported a different interpretation. Cf. Orn, 495 F.3d at 630. Substantial evidence means 16 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 17 Magallanes, 881 F.2d at 750 (citations omitted). “Where evidence is susceptible to more than one 18 rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch, 400 F.3d at 679. 19 The Commissioner argues that the ALJ did provide specific and legitimate reasons for 20 rejecting Dr. Cushman’s opinion: (1) Dr. Cushman based his opinion on only a one-time 21 examination early in the adjudication period; (2) Dr. Cushman did not review much of the 22 medical record; (3) Dr. Cushman’s statements regarding the extent of Plaintiff’s limitations were 23 unclear; (4) Dr. Cushman’s own objective findings documented Plaintiff to be only mildly 24 depressed; and (5) Dr. Cushman’s opinion was inconsistent with the record as a whole. (AR 29). 25 As to this final point, the ALJ found that the record consisted of a lack of evidence of formal 26 mental health therapy plus multiple mental status reports documenting normal conditions. In light 27 of this, the Commissioner argues the ALJ properly discounted Dr. Cushman’s report for its lack 1 determinable physical or mental impairment cannot be established in the absence of objective 2 medical abnormalities, i.e., medical signs and laboratory findings.” (Doc. 14 pp. 14-15) (quoting 3 Ukolov, 420 F.3d at 1005. 4 The Court concludes that some of the ALJ’s reasons for discounting Dr. Cushman’s 5 opinion, in isolation, are unconvincing. For instance, that Dr. Cushman based his opinion on a 6 one-time examination in the adjudication period does not by itself constitute a legitimate reason 7 for rejecting his opinion. Kellie W. v. Kijakazi, No. 22-cv-02131-TSH, 2022 WL 17812926, at *7 8 (N.D. Cal. Dec. 19, 2022); Ford v. Comm’r of Soc. Sec., No. 2:22-CV-0494-DMC, 2023 WL 9 5021162, at *8 (E.D. Cal. Aug. 7, 2023) (finding “one-time evaluation” reasoning to be 10 unpersuasive since “[e]xamining medical source opinions, by their very nature are often based on 11 a one-time examination of a claimant”). As for the ALJ’s criticism of Dr. Cushman’s opinion due 12 to vagueness and his general assessment that Plaintiff would have “difficulties/difficult time” 13 with certain things (AR 29), it is unclear which portion of Dr. Cushman’s report the ALJ found 14 vague; thus, this reason does not meet the specific and legitimate standard. See Robert G. v. 15 Comm’r of Soc. Sec., No. 1:18-cv-03064-JTR, 2019 WL 7811197, at *7 (E.D. Wash. Apr. 10, 16 2019) (“Simply labeling an opinion vague and contradictory with nothing more does not meet the 17 specific and legitimate standard.”). Likewise, a limited review of the record is not a sufficient 18 reason to discount an examining source’s opinion. See Alderete v. Colvin, No. 1:12-cv-01307- 19 JLT, 2013 WL 4049064, at *9 (E.D. Cal. Aug. 7, 2013) (“the fact that Dr. Cushman offered an 20 opinion upon a single evaluation and limited medical records is not a legitimate reason for 21 rejecting his opinion.”); M.D.B. v. Berryhill, No. 19-cv-02435-LB, 2020 WL 4051863, at *15 22 (N.D. Cal. July 20, 2020) (“Dr. Cushman’s limited review of the record on its own is not a 23 sufficient reason to discount his opinion.”). 24 However, the ALJ also discounted Dr. Cushman’s opinion in part based on his conclusion 25 that the opinion is not consistent with his own diagnoses and the record as a whole. (AR 29). In 26 so finding, the ALJ reasoned that, although Dr. Cushman relied heavily on Plaintiff’s subjective 27 complaints to render mental health diagnoses, he nonetheless objectively found Plaintiff’s 1 treatment for her mental health, consisting largely of medication and several unremarkable mental 2 health findings through her various physical examinations. (AR 33 citing AR 529, 584, 3 726,755,760, 828, 848, 773, 907, 920, 1005, 1034, 1125, 1262, 1573, 1580). 4 An ALJ can reject a physician’s opinion that is premised on a claimant’s subjective 5 complaints that properly have been discounted. Andrews v. Comm’r of Soc. Sec., No. 1:15-cv- 6 00185-SAB, 2016 WL 8730665, at *9 (E.D. Cal. Feb. 5, 2016) (citing Fair v. Bowen, 885 F.2d 7 597, 605 (1989), superseded by 20 C.F.R. § 404.1502(a)).4 The Ninth Circuit distinguishes 8 between a failure to seek mental health treatment because of a mental health condition, on the one 9 hand, and avoidance due to personal preference on the other hand. Molina v. Astrue, 674 F.3d 10 1104, 1113-14 (9th Cir. 2012). Although Plaintiff takes issue with the ALJ’s citations to various 11 mental impressions made during clinical visits for physical complaints, she does not dispute the 12 ALJ’s finding that Plaintiff did not seek mental health treatment, which is a proper reason to 13 discredit a claimant’s credibility. Tommasetti, 533 F.3d at 1039 (citing Smolen, 80 F.3d at 1284); 14 Coleman, 979 F.3d at 758 (finding that ALJ did err in finding opinion less persuasive since 15 diagnosis was based on Plaintiff’s self-reports, which in turn, were less persuasive due to history 16 of drug seeking behavior). 17 Accordingly, the ALJ’s discounting of Dr. Cushman’s opinions was properly based on 18 substantial evidence because the opinion was internally inconsistent and at odds with the record 19 as a whole. Thus, the ALJ did not err either in excluding depression as an impairment altogether 20 or alternatively, finding that, even if Plaintiff’s depression constituted a non-severe impairment, it 21 would not affect her limitations requiring adjustment to the RFC. 22 B. Whether the Decision of the ALJ or Appeals Council Judges Is Constitutionally 23 Defective 24 Plaintiff argues that the ALJ and Appeals Council who denied her application for benefits 25 did not have authority to do so because of an unconstitutional appointment of the former 26 Commissioner of Social Security. (Doc. 14-2 pp. 20-21; Doc. 16 p. 1). Plaintiff alleges that she 27

4 20 C.F.R. § 404.1502(a) are the amended regulations controlling SSA applications filed 1 suffered harm in the form of deprivation of a “constitutionally valid adjudication process” and 2 decision (Doc. 16 p. 3) and, thus, is entitled to a de novo hearing before a different ALJ. 3 In opposition, the Commissioner agrees that “42 U.S.C. § 902(a)(3) violates the separation 4 of powers to the extent it is construed as limiting the President’s authority to remove the 5 Commissioner without cause.” (Doc. 15 p. 2). However, under Collins v. Yellen, 141 S. Ct. 6 1761, 1787-89 (2021), even where an unconstitutional statutory removal restriction exists, a 7 plaintiff seeking relief on that basis must show that the restriction actually caused her harm. Id. 8 “Under our Constitution, the ‘executive Power’ – all of it – is ‘vested in a President,’ who 9 must ‘take Care that the Laws be faithfully executed.’” Seila Law LLC v. Consumer Fin. Prot. 10 Bureau, 591 U.S. 197, 203 (2020) (quoting Art. II, § 1, cl. 1; id., § 3). “Because no single person 11 could fulfill that responsibility alone, the Framers expected that the President would rely on 12 subordinate officers for assistance.” Id. at 203-04. Thus, the President is constitutionally 13 authorized to select and remove executive officers as part of the executive power under Article II. 14 Id. at 204 (citing Myers v. United States, 272 U.S. 52 (1926)). For instance, the President 15 appoints and the Senate confirms the Commissioner of the Social Security Administration. See 16 42 U.S.C. § 902(a)(1). “An individual serving in the office of Commissioner may be removed 17 from office only pursuant to a finding by the President of neglect of duty or malfeasance in 18 office.” 42 U.S.C. § 902(a)(3). Relevant here, Andrew Saul served as Commissioner from June 19 17, 2019, until July 9, 2021. Thereafter, Kilolo Kijakazi served as Acting Commissioner from 20 July 9, 2021, until December 20, 2023, when Martin O’ Malley was appointed and is presently 21 serving as the Commissioner. 22 In Kaufmann v. Kijakazi, the Ninth Circuit found that the removal provision in 42 U.S.C. 23 § 902(a)(3) violates separation of powers principles as it limits the President’s ability to remove 24 the Commissioner only for “neglect of duty or malfeasance in office.” 32 F.4th 843, 849 (9th Cir. 25 2022). However, the court found that the unconstitutional provision does not necessarily taint the 26 remainder of the statute since the offending provision may be severed from the constitutionally 27 valid provisions of the statute. Id. (citing Seila Law, 591 U.S. at 233). Moreover, an 1 to act. Id. (citing Collins, 141 S.Ct. at 1787-88 & n.23). And, consistent with Collins, the 2 Kaufmann court reiterated that a claimant must demonstrate how the unconstitutional removal 3 provision caused her actual harm. Id. (citations omitted). 4 In her reply, Plaintiff argues that the President strongly disapproved of the policy 5 adjudication framework and processes established by the Commissioner at the time and removed 6 him as soon as he believed that he could legally do so. (Doc. 16 p. 4). The court in Kaufmann 7 rejected a similar assertion and found that such policy-based arguments are not particularized to a 8 plaintiff, holding “if we agreed, then it would require us to undo all disability decisions made by 9 the Social Security Administration while the removal provision was operative.” Kaufmann, 32 10 F.4th at 850.5 11 Plaintiff’s arguments that the outcome of her disability claims would have been different 12 had the President immediately removed Commissioner Saul once he was inaugurated are too 13 speculative. To be entitled to relief, the Ninth Circuit has noted that particularized harm is 14 required – something akin to an allegation that a commissioner acting pursuant to a 15 constitutionally infirm appointment directed the Appeals council to decide her case in a specific 16 way. Kaufmann, 32 F.4th at 850. Plaintiff’s allegations of harm – that she suffered from a 17 constitutionally deficient adjudication process and decision by ALJ and Appeals Council 18 (Doc. 14-2 p. 20) – fall short of this level of specificity. See Ward v. Comm’r of Soc. Sec., No., 19 2022 WL 4008024, at *10 (D. Ariz. Sept. 2, 2022) (finding claims plaintiff “did not receive a 20 constitutionally valid adjudication process from SSA’s Appeals Council” and a “constitutionally 21 valid determination by the Appeals Council” to be “unavailing” and insufficient harm to warrant 22 remand); Ramos v. Comm’r of Soc. Sec., No. 1:20-cv-01606-EPG, 2022 WL 10508, at *4 (E.D. 23 Cal. Jan. 11, 2022) (rejecting plaintiff’s argument that she has established sufficient harm based 24 on the President’s delay in terminating Commissioner Saul and her denial of benefits). 25 /// 26 5 The Court notes that Plaintiff has previously raised this same challenge under the 27 Appointments Clause in one of her requests to have the Appeals Council to review her decision. (AR 193). The Appeals Council remanded her case partially because the Acting Commissioner 1 | IV. Conclusion 2 In light of the foregoing, it is HEREBY ORDERED: 3 1. Plaintiff's motion for summary judgment (Doc. 14) is DENIED; 4 2. The decision of the Commissioner of Social Security is AFFIRMED. 5 3. The Clerk of the Court is directed to enter judgment in favor of the Commissioner of 6 Social Security and close this case. 7 | IT IS SOORDERED. Dated: _ June 18, 2024 | hr 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ID