I. Introduction

11 Jose Gambino Menchaca seeks judicial review of the Commissioner’s decision denying 12 supplemental security income (SSI) under Title XVI of the Social Security Act.1 13

II. Factual and Procedural Background

14 Plaintiff applied for SSI on November 4, 2020. The Commissioner denied the application 15 initially and on reconsideration. AR 90, 99. Plaintiff appeared for a hearing before an ALJ on July 16 5, 2023. AR 32–54. The ALJ issued an unfavorable decision on July 14, 2023. AR 12–31. The 17 Appeals Council denied review on July 25, 2023, and this appeal followed. 18

III. The Disability Standard

19 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 20 Commissioner denying a claimant disability benefits. “This court may set aside the 21 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 22 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 23 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 24 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 25 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 26 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 27 When performing this analysis, the court must “consider the entire record as a whole and 28 1 The parties did not consent to the jurisdiction of a United States Magistrate Judge. Docs. 7, 10. may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social 2 Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the

3 evidence could reasonably support two conclusions, the court “may not substitute its judgment for

4 that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066

5 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless

6 error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the

7 ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

8 To qualify for benefits under the Social Security Act, a plaintiff must establish that 9 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 10 last for a continuous period of not less than twelve months. 42 U.S.C. § 11 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not 12 only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists 13 in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether 14 he would be hired if he applied for work. 42 U.S.C. §1382c(a)(3)(B). 15 To achieve uniformity in the decision-making process, the Commissioner has established a 16 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 17 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the 18 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 19 Specifically, the ALJ is required to determine: 1- whether a claimant engaged in substantial 20 gainful activity during the period of alleged disability; 2- whether the claimant had medically 21 determinable “severe impairments”; 3- whether these impairments meet or are medically equivalent 22 to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; 4- whether 23 the claimant retained the residual functional capacity (“RFC”) to perform past relevant work; and 24 5- whether the claimant had the ability to perform other jobs existing in significant numbers at the 25 national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears the burden of 26 proof at steps one through four, the burden shifts to the commissioner at step five to prove that 27 Plaintiff can perform other work in the national economy given her RFC, age, education and work 28 experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014).

IV. The ALJ’s Decision

2 At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity from

3 the application date of November 4, 2020. AR 17. At step two the ALJ found that Plaintiff had no

4 severe impairment, and the following non-severe impairments: history of polysubstance

5 abuse/addiction (opioid (intravenous (IV) heroin) and methamphetamines (now on methadone

6 maintenance); alcohol use in remission; hepatitis C; hypoglycemia; rash; dermatitis (neck rash);

7 major depressive disorder; unspecified anxiety disorder; gastroesophageal reflux disease (GERD);

8 and lumbar spine problem (mild lumbar spine disc height loss L5-S1/mild anterior marginal

9 spurring L2-5/mild diffuse facet hypertrophy). AR 17–18. 10 The ALJ concluded the claimant did not have an impairment or combination of impairments 11 that significantly limited, or was expected to significantly limit, the ability to perform basic work- 12 related activities for 12 consecutive months. The ALJ thus concluded that the claimant did not have 13 a severe impairment or combination thereof under 20 CFR 416.921 et seq (AR 18–27) and 14 accordingly found Plaintiff was not disabled since the application date of November 4, 2020. AR 15 27. 16

V. Issue Presented

17 Plaintiff asserts that the ALJ’s finding of no severe mental health impairment was 18 unsupported by substantial evidence. Plaintiff specifically disputes the ALJ’s rejection of Dr. 19 Butler’s opinion that Plaintiff was moderately impaired in his ability to deal with workplace stress. 20 Plaintiff also disputes the ALJ’s rejection of his subjective testimony, a discussion interwoven into 21 Plaintiff’s broader argument about the severity of his mental health impairment (chiefly anxiety). 22 As such, the issues will be addressed together. 23 A. Applicable Law 24 1. Step Two Severity Threshold 25 At step two, the ALJ must determine if the claimant has a medically severe impairment or 26 27 combination thereof. “An impairment or combination of impairments is not severe if it does not 28 significantly limit [the claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521(a) & 416.921(a). Basic work activities are “the abilities and aptitudes necessary to do 2 most jobs,” and those abilities and aptitudes include: 1- physical functions such as walking, 3 standing, sitting, lifting, and carrying; 2- capacities for seeing, hearing, and speaking; 3- 4 5 understanding, carrying out, and remembering simple instructions; 4- use of judgment; 5-

6 responding appropriately to supervision, co-workers, and usual work situations; and 6- dealing

7 with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b) & 416.921(b).

8 The step-two severity threshold is not high. “An impairment or combination of impairments

9 can be found not severe only if the evidence establishes a slight abnormality that has no more than 10 a minimal effect on an individual[’]s ability to work.” Smolen, 80 F.3d at 1290. “Step two, then, 11 is a de minimis screening device [used] to dispose of groundless claims[.]” Smolen, 80 F.3d at 12 13 1290. 14 2. Medical Opinions 15 For applications filed on or after March 27, 2017, the new regulations eliminate a hierarchy 16 of medical opinions, and provide that “[w]e will not defer or give any specific evidentiary weight, 17 including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), 18 including those from your medical sources.” 20 C.F.R. § 404.1520c(a). Rather, when evaluating 19 any medical opinion, the regulations provide that the ALJ will consider the factors of supportability, 20 21 consistency, treatment relationship, specialization, and other factors. 20 C.F.R. § 404.1520c(c). 22 Supportability and consistency are the two most important factors and the agency will articulate 23 how the factors of supportability and consistency are considered. Id. 24 3. Subjective Testimony 25 An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding 26 subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 27 28 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective medical evidence of an impairment that could reasonably be expected to produce some degree of 2 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the 3 claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate the 4 5 intensity and persistence of [the claimant’s] symptoms to determine the extent to which the

6 symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2. An

7 ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and convincing

8 reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16-3p at *10.

9 B. Analysis 10 1. Dr. Butler’s Opinion Does Not Establish A Severe Impairment 11 Even If Adopted

12 Per the regulations, “when we rate your degree of limitation in [the paragraph B criteria] 13 (understand, remember, or apply information; interact with others; concentrate, persist, or maintain 14 pace; and adapt or manage oneself), we will use the following five-point scale: None, mild, 15 moderate, marked, and extreme.” 20 C.F.R § 416.920a(c)(4). An impairment causing no more 16 17 than mild limitations in any area is generally considered a non-severe impairment. 20 C.F.R. § 18 416.920a(d)(1). The agency also considers whether the claimant has an impairment or combination 19 thereof that significantly limits performance of basic work activities. See 20 CFR 416.920a(d)(1). 20 Here, the ALJ determined that Plaintiff had no more than mild limitations in any of the four 21 domains of functioning, and that Plaintiff did not have an impairment or combination of 22 impairments that significantly limited his ability to perform basic work activities. The ALJ 23 therefore concluded that Plaintiff had no severe mental impairment 24 25 Relatedly, on June 30, 2021, Dr. Butler conducted a consultative psychological examination 26 of Plaintiff at the request of the agency. AR 311–314. Dr. Butler rendered a functional assessment 27 at the end of the evaluation, opining that Plaintiff was: 1- incapable of managing his own funds; 2- 28 mildly impaired in his ability to perform simple and repetitive tasks; 3- mildly impaired in his ability to perform detailed and complex tasks; 4- unimpaired in his ability to accept instructions 2 from supervisors; 5- unimpaired in the ability to interact with coworkers and the public; 6- mildly 3 impaired in his ability to perform work activities without special or additional instruction; 7- mildly 4 5 impaired in his ability to maintain regular attendance and complete a normal workday and

6 workweek without interruptions from a psychiatric condition; and 8- moderately impaired in his

7 ability to deal with the usual stress encountered in the workplace. AR 314 (emphasis added).

8 Plaintiff relies heavily, if not exclusively, on the 8th finding within Dr. Butler’s functional

9 assessment and critiques the ALJ’s reasoning for rejecting same. However, it is important to note 10 at the outset here that even accepting Dr. Butler’s functional assessment in full, including the 11 moderate impairment as to stress tolerance, it would not necessarily establish a severe mental 12 13 impairment because it would not establish more than mild limitations in the paragraph B criteria 14 (the four functional domains set forth above), nor constitute a significant limitation in the claimant’s 15 ability to perform basic work activities as listed above. See 20 CFR 416.920a(d)(1). 16 As Defendant explains, and to which Plaintiff did not reply, caselaw has similarly held that 17 a moderate limitation with respect to one work activity does not translate into a severe mental 18 impairment. See, e.g. Koehler v. Astrue, 283 Fed. Appx. 443, 445 (9th Cir. 2008) (unpublished) 19 (ALJ properly found claimant’s mental impairment was not severe, because contrary to claimant’s 20 21 assertion, a treating doctor’s opinion that claimant had “a moderate mental impairment” did not 22 translate into a severe one; “The regulatory scheme [] does not mandate that [] a ‘moderate’ degree 23 of limitation in one’s ability to respond to changes in the workplace setting must be found to be a 24 ‘severe’ mental impairment”). 25 Most notably, in the Ward case the Ninth Circuit held that the ALJ properly found no severe 26 mental impairment where the claimant’s functioning was mildly impaired or unimpaired as to 7 of 27 28 8 work activities, and moderately impaired in 1 activity, because the “ALJ must consider all of the evidence in the record, not just a lone sentence”. Ward v. Berryhill, 711 Fed. Appx. 822, 824 (9th 2 Cir. 2017) (unpublished). Similarly here, Dr. Butler opined Plaintiff was unimpaired or mildly 3 impaired as to 7 of 8 work activities, and only moderately impaired in 1. As such, Dr. Butler’s 4 5 opinion likewise does not necessarily translate to Plaintiff having a severe mental impairment.

6 2. The ALJ’s Finding of No Severe Mental Impairment was supported by substantial evidence, as was the ALJ’s Rejection of 7 Dr. Butler’s Assessment of Plaintiff'

8 Assuming that Dr. Butler’s opinion as to moderate impairment in handling the stressors of

9 a workplace would—if adopted—be sufficient to meet the severity threshold at step two, the ALJ’s 10 rejection of the opinion and associated limitation were well supported, as was the rejection of 11 Plaintiff’s related testimony. 12 13 Plaintiff challenges each of the ALJ’s articulated reasons, including: 1- his activities of 14 daily living and self reports; 2- medical evidence including objective findings on mental status 15 examination and records indicating he was “high functioning” with no history of trauma; and 3- 16 lack of treatment for mental health impairments. 17 a) Activities of Daily Living and Self Reports 18 Plaintiff disputes the ALJ’s reliance on the fact that he was independent in personal care, 19 performed some chores, and was groomed appropriately. MSJ at 10 (Doc. 16). Plaintiff contends 20 21 this was a mischaracterization of the record which reflects he was homeless and living in his car, 22 had no chores to perform other than periodically cleaning his car, and that he needed reminders to 23 groom. Id. 24 As the ALJ noted, the evidence also reflects Plaintiff went out alone, shopped in stores, 25 periodically worked on cars changing oil and brakes, collected cans to recycle, enjoyed 26 woodworking, rode his bike 1 mile each day to the methadone clinic, raked his girlfriend’s yard— 27 28 which took 5 minutes—and took out her trash and took out her dogs. AR 20, 24, 25. Later in his brief Plaintiff acknowledges he periodically engaged in such activities, but 2 argues that this does not establish a capacity for full time skilled work. MSJ at 14. Although the 3 cited activities do not replicate the rigors and stressors of full-time work, they are in tension with 4 5 Dr. Butler’s opinion that Plaintiff’s stress tolerance was significantly limited. The cited activities

6 are also in tension with Plaintiff’s related testimony, such as his fear of going outside. AR 44.

7 On balance, the ALJ’s reliance on the cited activities was appropriate. See Valentine v.

8 Commissioner Social Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (ALJ satisfied “clear and

9 convincing” standard for an adverse credibility determination where claimant engaged in 10 “gardening and community activities . . . evidence [which] did not suggest [he] could return to his 11 old job,” but “did suggest that [his] later claims about the severity of his limitations were 12 13 exaggerated.”). 14 b) Medical Evidence 15 Plaintiff disputes the ALJ’s emphasis on the intake note from Kings View substance abuse 16 treatment program noting that he denied a history of trauma. MSJ at 11. Plaintiff contends the 17 ALJ overlooked that the same note referenced an abusive relationship with the mother of his 18 children. Id. As Defendant stated in response, and to which Plaintiff did not reply, “Plaintiff stated 19 that he was in an abusive relationship with his ex-girlfriend insofar as they ‘used to fight a lot (AR 20 21 245),’ which does not contradict Plaintiff’s concession that he had ‘never experienced or witnessed 22 any kind of trauma, abuse, neglect, or sexual abuse’ (AR 245, 311).” 23 Plaintiff also disputes the ALJ’s emphasis on a note from the same intake evaluation at 24 Kings View stating Plaintiff’s “level of functioning is high.” AR 245. Plaintiff explains that “there 25 is absolutely no formal or even informal mental status evaluation associated with the finding,” and 26 that it is therefore “highly speculative” to conclude that he is high functioning. MSJ at 12. 27 28 Importantly though, the intake evaluation is plainly written from Plaintiff’s point of view. Thus, if the statement is speculative, it was Plaintiff, not the treating provider or the ALJ, who was engaged 2 in speculation. Further, the fact that Plaintiff described himself as high functioning—or made 3 statements giving the provider the impression that he regarded himself as high functioning—is 4 5 certainly not an irrelevant consideration when assessing the functional impact of Plaintiff’s mental

6 health impairments. The ALJ’s partial reliance on that statement was therefore appropriate.

7 Plaintiff also disputes the ALJ’s emphasis on the normal findings that Dr. Butler noted,

8 specifically, normal orientation, normal thought content and normal speech, while failing to explain

9 why or how these findings were more important than other objective findings of poor memory, 10 anxious affect and slowed performance. MSJ at 11. Defendant responds that Dr. Butler’s findings 11 concerning anxiousness and other positive findings were based on self-reported symptoms. Resp. 12 13 at 9. However, this response is not entirely accurate as Dr. Butler noted that Plaintiff “reported 14 [his] mood was anxious” and then noted objectively that affect was congruent with mood (i.e. 15 anxious). AR 313. 16 Nevertheless, one mental status examination reflecting an anxious affect is a relatively 17 unconvincing basis upon which to rest a conclusion that Plaintiff’s ability to handle the typical 18 stress of a workplace was significantly impaired. Although Plaintiff also displayed poor working 19 memory and slowed/poor performance of cognitive tasks, those findings are not particularly 20 21 probative of stress tolerance. The remaining objective findings were benign. AR 313–14. 22 If the evidence could reasonably support two conclusions, the court “may not substitute its 23 judgment for that of the Commissioner” and must affirm the decision. Jamerson, 112 F.3d at 1066; 24 see also Tommasetti, 533 F.3d at 1041 (“the ALJ is the final arbiter with respect to resolving 25 ambiguities in the medical evidence”). The ALJ did not err in finding Dr. Butler’s mental status 26 examination findings unsupportive of a moderate impairment in stress tolerance. 27 28 c) Lack of Treatment for Mental Health Finally, Plaintiff disputes the ALJ’s reliance on the lack of treatment for mental health, aside 2 from an opioid dependence clinic, for a 3 to 4 year period. However, ALJs may consider 3 “unexplained or inadequately explained failure to seek treatment or to follow a prescribed course 4 5 of treatment.” Tommasetti, 533 F.3d at 1039.

6 Plaintiff contends the ALJ “failed to consider an explanation for same” as required by Social

7 Security Ruling 16-3p, namely his homelessness and lack of resources. MSJ at 15 (emphasis

8 added). While homelessness and lack of resources could certainly be “an” explanation for lack of

9 treatment, they were not the explanation that Plaintiff testified to here. Rather, the explanation was 10 that his previous clinic closed, and—even though other clinics took his insurance (Calworks)—he 11 hadn’t pursued other clinics because he “was just used to the one I was going to.” AR 53. 12 13 Continuity among treating providers is certainly ideal, and the lack thereof can understandably be 14 frustrating. However, that does not excuse the lack of treatment for a condition that allegedly 15 caused significant limitations in work-related functioning. 16

VI. Recommendations

17 For the reasons stated above, substantial evidence and applicable law support the ALJ’s 18 conclusion that Plaintiff was not disabled. Accordingly, the recommendation is as follows: 19 1. That Plaintiff’s motion for summary judgment (Doc. 16) be DENIED. 20 21 2. That Defendant’s cross-motion (Doc. 20) be GRANTED. 22 3. That the decision of the Commissioner of Social Security be AFFIRMED. 23 4. That the Court Clerk of Court be directed to enter judgment in favor of Defendant 24 Commissioner of Social Security and against Plaintiff Jose Gambino Menchaca. 25

VII. Objections Due Within 14 Days

26 These Findings and Recommendations will be submitted to the United States District Judge 27 28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these Findings and Recommendations, any party may file written 2 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 3 Findings and Recommendations.” The parties are advised that failure to file objections within the 4 5 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

6 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

7

8 IT IS SO ORDERED. 9 Dated: February 16, 2025 /s/ Gary S. Austin 10 UNITED STATES MAGISTRATE JUDGE

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