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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 11 12 GUADALUPE G. GARFIELD, Case No. 1:21-cv-01281-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER

REGARDING PLAINTIFF’S SOCIAL

14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 1, 13)

16 Defendant. 17 18 This matter is before the Court on Plaintiff’s complaint for judicial review of an 19 unfavorable decision by the Commissioner of the Social Security Administration regarding her 20 application for disability insurance benefits. The parties have consented to entry of final judgment 21 by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with any appeal 22 to the Court of Appeals for the Ninth Circuit. (ECF No. 8). 23 Plaintiff argues as follows: 24 1. The ALJ misapplied the doctrine of res judicata under Chavez v. Bowen and erroneously adopted the same prior RFC despite finding that Plaintiff’s 25 circumstances changed. 26 2. The ALJ failed to include work-related limitations in the RFC consistent with 27 the nature and intensity of Plaintiff’s limitations and failed to offer clear and 28 convincing reasons for rejecting Plaintiff’s subjective complaints. 2 parties,1 and the applicable law, the Court finds as follows: 3 I. ANALYSIS 4 A. Res Judicata 5 Plaintiff argues that the ALJ committed “harmful legal error” by assessing the same 6 residual functional capacity (RFC) for Plaintiff that another ALJ assessed in a 2018 opinion 7 denying Plaintiff disability benefits despite the ALJ in the instant case finding that Plaintiff had a 8 new severe impairment of a lumbar disc tear at step two of the disability evaluation. (ECF No. 13, 9 p. 8). 10 The challenged RFC is as follows: 11 After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform light work as 12 defined in 20 CFR 404.1567(b) except the claimant can lift or carry twenty pounds occasionally and ten pounds frequently. The claimant can push or pull within her 13 lifting and carrying limitations. The claimant can stand and walk for six hours in 14 an eight-hour workday, and she can sit for six hours in an eight-hour workday. The claimant cannot climb ladders, ropes, or scaffolds, and she should have no 15 prolonged walking greater than thirty minutes at a time. The claimant should have 16 the ability to rest every two hours for fifteen minutes following with the normal breaks, and the ability to stand and stretch every hour for about one minute. The 17 claimant should not work around hazards, such as working at unprotected heights, operating fast or dangerous machinery, or driving commercial vehicles. 18 The claimant can perform no extreme motions of the neck to one side or the other 19 or up and down for a prolonged period. The claimant can perform noncomplex routine tasks in a static work environment. The claimant can have occasional 20 contact with the public and she can perform occasional tasks that require teamwork. 21 (Compare A.R. 15 (above RFC) with A.R. 90 (2018 RFC finding same limitations)). 22 Plaintiff’s argument is based on Chavez v. Bowen, which held that “[t]he principles of res 23 judicata apply to administrative decisions, although the doctrine is applied less rigidly to 24 administrative proceedings than to judicial proceedings.” Chavez v. Bowen, 844 F.2d 691, 693 25 (9th Cir. 1988). Under that case, a ALJ’s finding of nondisability is entitled to a “presumption of 26

27 1 Plaintiff’s reply was filed approximately two weeks after the deadline set under the Court’s scheduling order. (ECF No. 16; see ECF No. 5, p. 2, providing fifteen days after Defendant’s brief for Plaintiff to file 28 the optional reply). Though untimely, the Court has considered the reply in rendering a decision. 2 circumstances’ indicating a greater disability.” Id. “Changed circumstances [] include an increase 3 in the severity of the claimant’s impairment, the alleged existence of a new impairment, or a 4 change in the criteria for determining disability.” Tallman v. Astrue, No. 1:08CV01794 DLB, 5 2010 WL 395936, at *6 (E.D. Cal. Jan. 28, 2010) (citing Acquiescence Ruling (AR) 97-4(9)). 6 Following the Ninth Circuit’s ruling in Chavez, the Social Security Administration (“SSA”) adopted SSR 97–4(9) to explain how the SSA will apply Chavez within 7 the Ninth Circuit. The ruling applies “only to cases involving a subsequent disability claim with an unadjudicated period arising under the same title of the 8 Act as a prior claim on which there has been a final decision by an ALJ or the 9 Appeals Council that the claimant is not disabled.” SSR 97–4(9), 1997 WL 742758, at *3. The ruling directed adjudicators to follow a two-step inquiry. Id. 10 First, adjudicators must apply a presumption of continuing non-disability. A 11 “claimant may rebut this presumption by showing a ‘changed circumstance’ affecting the issue of disability with respect to the unadjudicated period.” Id. 12 Second, if the claimant rebuts the presumption, adjudicators must give effect to certain findings “contained in the final decision by an ALJ or the Appeals Council 13 on the prior claim, when adjudicating the subsequent claim,” including the 14 findings of a claimant’s RFC, education, or work experience. Id. “Adjudicators must adopt such a finding from the final decision on the prior claim in determining 15 whether the claimant is disabled with respect to the unadjudicated period unless there is new and material evidence relating to such a finding or there has been a 16 change in the law, regulations or rulings affecting the finding or the method for 17 arriving at the finding.” Id. 18 Smith-Scruggs v. Astrue, No. CV 09-4443-OP, 2010 WL 256546, at *2 (C.D. Cal. Jan. 21, 2010). 19 A claimant’s RFC is “the most [a claimant] can still do despite [her] limitations.” 20 20 C.F.R. §§ 404.1545(a), 416.945(a); see also 20 C.F.R. Part 404, Subpart P, Appendix 2, 21 § 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the 22 capacity for sustained performance of the physical-mental requirements of jobs”). An ALJ’s RFC 23 assessment is based on the record as a whole. See Mills v. Comm’r of Soc. Sec., No. 2:13-CV- 24 0899-KJN, 2014 WL 4195012, at *4 n.8 (E.D. Cal. Aug. 22, 2014) (“[B]ecause it is the ALJ’s 25 responsibility to formulate an RFC that is based on the record as a whole, . . . the RFC need not 26 exactly match the opinion or findings of any particular medical source.”). An ALJ’s RFC 27 determination will be upheld if “the ALJ applied the proper legal standard and his decision is 28 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 2 presumption of continuing nondisability” and thus there was “no res judicata effect with respect 3 to the non-adjudicated period because there [was] a showing of changed circumstances,” namely, 4 “a new diagnosis of a lumbar disc tear.” (A.R. 10). 5 However, although the ALJ found that Plaintiff rebutted the presumption of nondisability, 6 the ALJ was not required to make a finding of disability. Instead, the ALJ was required to 7 independently evaluate the disability determination for the non-adjudicated period. Here, the ALJ 8 proceeded to evaluate the evidence and determine the appropriate RFC. After independently 9 evaluating the evidence, the ALJ concluded that “[a]lthough the record shows a new impairment 10 of lumbar disc tear, the record remains consistent with the [prior] residual functional capacity.” 11 (A.R. 17, see A.R. 90, 119). The ALJ based the RFC determination on the record as a whole, 12 including Plaintiff’s medical records, which did not show the need for more restrictive 13 limitations; the opinion of Dr. J. Linder, which recommended limitations consistent with the 14 assessed RFC, and Plaintiff’s demonstrated abilities, particularly, that she worked three hours a 15 day as a playground supervisor. (A.R. 15-17). 16 Moreover, requiring the ALJ to find a more restrictive RFC based solely on Plaintiff’s 17 lumbar disc tear being a severe impairment would run counter to caselaw noting that a step-two 18 finding does not control the RFC determination: 19 Step two is merely a threshold determination meant to screen out weak claims. Bowen v. Yuckert, 482 U.S. 137, 146–47, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). 20 It is not meant to identify the impairments that should be taken into account when determining the RFC. In fact, “[i]n assessing RFC, the adjudicator must consider 21 limitations and restrictions imposed by all of an individual’s impairments, even 22 those that are not ‘severe.’” Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, Social Security Ruling (“SSR”) 96-8p, 1996 WL 23 374184, at *5 (S.S.A. July 2, 1996). The RFC therefore should be exactly the same 24 regardless of whether certain impairments are considered “severe” or not. Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). 25 Ultimately, the record reflects that the ALJ considered Plaintiff’s lumbar disc tear but 26 concluded that it did not warrant a more restrictive RFC than previously assessed. This decision 27 was reached after the ALJ reviewed the record as a whole and assessed a RFC consistent with this 28 2 opinion does not constitute legal error under Chavez. 3 B. Subjective Complaints 4 Plaintiff argues that the ALJ failed to provide clear and convincing reasons to reject her 5 subjective complaints. (ECF No. 19, p. 14). 6 As to a plaintiff’s subjective complaints, the Ninth Circuit has concluded as follows: 7 Once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant’s testimony as to subjective 8 symptoms merely because they are unsupported by objective evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Cotton v. 9 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (“it is improper as a matter of law to discredit excess pain testimony solely on the ground that it is not fully 10 corroborated by objective medical findings”). Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner’s reasons for rejecting 11 the claimant’s testimony must be “clear and convincing.” Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). General findings are insufficient; rather, the ALJ 12 must identify what testimony is not credible and what evidence undermines the claimant’s complaints. 13 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996). Additionally, an 14 ALJ’s reasoning as to subjective testimony “must be supported by substantial evidence in the 15 record as a whole.” Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995). 16 As an initial matter, the ALJ concluded that Plaintiff’s “medically determinable 17 impairments could reasonably be expected to cause some of the symptoms of the nature alleged 18 by [Plaintiff].” (A.R. 15). Accordingly, because there is no affirmative evidence showing that 19 Plaintiff was malingering, the Court looks to the ALJ’s decision for clear and convincing reasons, 20 supported by substantial evidence, for not giving full weight to Plaintiff’s symptom testimony. 21 The ALJ gave the following reasons for discounting Plaintiff’s subjective complaints: 22 The clamant alleges disability based on a plate in her neck, severe pain, migraines, 23 high blood pressure, low back pain, right leg surgery, and right hand numbness. Ex. B2E/2. She testified to seeing spots in her eyes, muscle spasms in her back, 24 and migraines at least once a week. 25 . . . . 26 As for the claimant’s statements about the intensity, persistence, and limiting effects of her symptoms, they are inconsistent with her work and the mild 27 objective evidence as discussed below.

28 imaging shows a stable cervical fusion. Ex. B1F/6, 8; B2F/3. Additionally, she has 2 a lumbar disc tear. Ex. B3F/12. These conditions have caused limitations consistent with the residual functional capacity assessment. Her cervical symptoms 3 are worsened with postural activities. For instance, she has pain climbing onto the top bunk. Ex. B1F/4. She has pain with range of motion in both the cervical and 4 lumbar spine. Ex. B1F/5; B3F/11, 19, 27; B4F/12. She has symptoms that are 5 consistent with a general reduced physical ability. She has some reduced strength. Ex. B3F/27. Her gait is antalgic at times. Ex. B3F/11. Pain radiates into her legs. 6 Ex. B3F/5, 11. Her weakness and limitations walking are consistent with the reduction to the light exertional level. Further, she has pain. Pain is confirmed by 7 noted tenderness along her spine. Ex. B1F/5, 21, 31; B3F/11. Muscle spasms are 8 also consistent with pain complaints. Ex. B1F/21, 31; B3F/5, 11, 19. Her pain complaints contribute to the limitation to the light exertional level and support 9 mental limitations as noted in the prior hearing level decision. 10 While the record continues to support the limitations, the record is consistent with 11 the retained ability in the residual functional capacity assessment. The claimant’s activities support a retained ability to perform light exertion. She works three 12 hours a day as a playground supervisor at the light exertional level consistent with 13 the residual functional capacity assessment. Hearing testimony. Her clinical presentation is consistent with the residual functional capacity assessment 14 above. While her gait is antalgic at times, it is normal at other times. Ex. 3F/20. She remains able to heel and toe walk normally. Ex. B3F/11. Recent records 15 indicate her range of motion is intact. Ex. B5F/11. Her clinical presentation and 16 her activities support that she is able to perform tasks as described in the residual functional capacity assessment. 17 (A.R. 15-16). 18 As for the first reason cited by the ALJ, inconsistencies with the medical record and a lack 19 of support from the medical record are sufficient bases to discount a Plaintiff’s subjective 20 testimony. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (noting that 21 conflicts between testimony and objective medical evidence was a basis to discount a plaintiff’s 22 credibility); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain 23 testimony cannot be rejected on the sole ground that it is not fully corroborated by objective 24 medical evidence, the medical evidence is still a relevant factor in determining the severity of the 25 claimant’s pain and its disabling effects.”). As the ALJ noted, the medical record did not contain 26 objective medical findings supporting limitations to the degree that Plaintiff alleged. Moreover, 27 the examination findings in the medical records supported limitations consistent with the RFC. 28 1 | For example, while Plaintiff's gait was at times antalgic, it was also normal at times. (A.R. 16 2 | (citing A.R. 342, noting normal gait)). Moreover, Plaintiff was able to heel-and-toe walk 3 | normally and recent records indicating that her range of motion was intact. (A.R. 16 (citing A.R. 4 | 333, noting Plaintiffs ability to heel-and-toe walk normally); (citing 439, noting that Plaintiff had 5 | full range of motion in her extremities and musculoskeletal areas)). 6 Additionally, Plaintiffs ability to work three hours a day as a playground supervisor was a 7 | reasonable basis to discount her totally disabling allegations. See Trout v. Halter, 5 F. App’x 740, 8 | 741 (9th Cir. 2001) (unpublished) (noting that ALJ’s reliance on Plaintiff's ability to work part- 9 | time was clear and convincing reason, among others, to reject subjective symptom testimony). 10 || Lastly, elsewhere the ALJ noted that the opinion of Dr. Linder was persuasive as to Plaintiff's 11 abilities, which as discussed above, assessed limitations inconsistent with total disability. (A.R. 12 | 16,119). 13 The Court concludes that the ALJ provided legally sufficient reasons for not giving full 14 | weight to Plaintiff's subjective complaints. 15 | IL CONCLUSION AND ORDER 16 Accordingly, the decision of the Commissioner of Social Security is hereby affirmed. And 17 | the Clerk of the Court is directed to close this case. 18 ig | IS SO ORDERED. *0 | Dated: _ September 28, 2022 [SJ heey □ 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28