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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 11 12 GUADALUPE LOMELI NAVARRO, Case No. 1:21-cv-01379-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER

REGARDING PLAINTIFF’S SOCIAL

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

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 supplemental security income benefits. The parties have consented to entry of 21 final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) 22 with any appeal to the Court of Appeals for the Ninth Circuit. (ECF No. 9). 23 Plaintiff presents the following issues: 24 1. The ALJ’s RFC is unsupported by substantial evidence because the ALJ erred in 25 failing to find Plaintiff’s borderline intellectual functioning, headaches and diabetes severe. 26 2. The ALJ erred in rejecting the opinion of LPC Gordon without adequately 27 addressing the factors of supportability and consistency. 28 (ECF No. 15, p. 8). 2 applicable law, the Court finds as follows: 3 I. ANALYSIS 4 A. RFC 5 Plaintiff first challenges the following RFC assessed by the ALJ: After careful consideration of the entire record, the undersigned finds that the 6 claimant has the residual functional capacity to perform a full range of work at all 7 exertional levels but with the following nonexertional limitations: the claimant can perform simple routine, repetitive work and she can occasionally interact with 8 coworkers and the public. She cannot perform fast-paced assembly line work. She can meet production requirements that allow her to sustain a flexible and goal 9 oriented pace. The claimant can sustain concentration and persistence for periods 10 of two hours at a time. 11 (A.R. 124). 12 Specifically, Plaintiff argues that “the RFC is not supported by substantial evidence 13 because the ALJ failed to find Plaintiff’s borderline intellectual functioning, headaches, and 14 diabetes severe.” (ECF No. 15, p. 9). Noting that only a de minimis screening is used to evaluate 15 the severity of impairments under Step Two, Plaintiff argues that the ALJ’s opinion “cherry-picks 16 the evidence” and “ignores probative evidence” in determining which of Plaintiff’s impairments 17 are severe. (Id. at 10); see Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (“[T]he step-two 18 inquiry is a de minimis screening device to dispose of groundless claims.”). 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”). “In 23 determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record, 24 including, inter alia, medical records, lay evidence, and the effects of symptoms, including pain, 25 that are reasonably attributed to a medically determinable impairment.” Robbins v. Soc. Sec. 26 Admin., 466 F.3d 880, 883 (9th Cir. 2006) (internal quotation marks and citations omitted). 27 In reviewing findings of fact with respect to RFC assessments, this Court determines 28 whether the decision is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial 2 but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 3 1975). It is “such relevant evidence as a reasonable mind might accept as adequate to support a 4 conclusion.” Richardson, 402 U.S. at 401 (internal citation omitted). 5 As an initial matter, in assessing RFC, an ALJ considers both severe and non-severe 6 impairments. 20 C.F.R. § 416.945(a)(2) (“We will consider all of your medically determinable 7 impairments of which we are aware, including your medically determinable impairments that are 8 not ‘severe,’ as explained in §§ 416.920(c), 416.921, and 416.923, when we assess your residual 9 functional capacity.”). As the Ninth Circuit noted in rejecting an argument similar to Plaintiff’s: 10 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). 11 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 12 limitations and restrictions imposed by all of an individual’s impairments, even 13 those that are not ‘severe.’” Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, Social Security Ruling (“SSR”) 96-8p, 1996 WL 14 374184, at *5 (S.S.A. July 2, 1996). The RFC therefore should be exactly the same 15 regardless of whether certain impairments are considered “severe” or not. Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). 16 Thus, even if the ALJ failed to properly find some of Plaintiff’s impairments severe at 17 Step Two, that does not necessarily render the RFC unsupported by substantial evidence. See 18 Herrera v. Comm'r of Soc. Sec., No. 1:20-CV-01026-SAB, 2022 WL 1165830, at *6 (E.D. Cal. 19 Apr. 20, 2022), report and recommendation adopted, 2022 WL 3969544 (E.D. Cal. Aug. 31, 20 2022) (“Even if an ALJ errs by failing to include an impairment as severe at step two, when an 21 ALJ nonetheless considers limitations resulting from the impairment in formulating the RFC, any 22 error in not considering the impairment to be severe is harmless.”). 23 Thus, because the ALJ found that Plaintiff had some severe impairments at Step Two— 24 major depressive disorder with psychotic symptoms and anxiety—and proceeded to examine the 25 remaining Steps of the disability determination, any error at Step Two was harmless. Id. at 1049 26 (“Moreover, step two was decided in Buck’s favor after both hearings. He could not possibly 27 have been prejudiced. Any alleged error is therefore harmless and cannot be the basis for a 28 2 (“Emsley argues that the ALJ erred by failing to credit his ‘rheumatoid arthritis’ and 3 ‘degenerative disc disease/sciatica’ as severe impairments at Step Two. Any error at Step Two is 4 harmless because, those disputed impairments aside, the ALJ found other impairments to be 5 severe and proceeded to Step Three.”). 6 To the extent that Plaintiff argues—severity aside—that the ALJ failed to properly 7 incorporate limitations from all of Plaintiff’s impairments into the RFC, this argument also fails. 8 The ALJ conducted a thorough review of the medical records, medical opinions, and Plaintiff’s 9 subjective complaints in considering all of her alleged impairments. 10 Pertinent here, as to Plaintiff’s intellectual limitations the ALJ noted that her “ability to 11 understand, remember, and carry out work-related tasks in a persistent manner on a sustained 12 basis” would cause “some limitations in understanding as evidenced by her low IQ of 63 and her 13 history of special education (Ex. 1F/34, B13F/20).” (A.R. 125). But “there [was] a paucity of 14 objective findings in the record indicative of ongoing memory and concentration deficits.” (A.R. 15 125). Importantly, Plaintiff daily activities—such as preparing meals, shopping in stores, and 16 taking public transportation—indicated she was “capable of performing simple routine repetitive 17 work but not assembly line work, for two hour periods, with production requirements allowing 18 her to sustain a flexible and goal-oriented pace.” (AR 125). 19 As to Plaintiff’s complaints of headaches, the ALJ concluded that “the frequency and 20 severity of her alleged headaches, are generally inconsistent with the evidence regarding her 21 physical functioning.” (AR 126). And “her headaches have not required specialized treatment.” 22 (A.R. 126). Thus, no additional limitations were warranted. (A.R. 126). Elsewhere, the ALJ noted 23 that “[p]rior to September 2020, the claimant had not reported headaches since October 2019” 24 and “[n]o evidence was submitted to establish ongoing frequency and severity of headaches to the 25 extent alleged” and “did not require emergency treatment or hospitalization for headaches within 26 the period at issue.” (A.R. 122). 27 As to Plaintiff’s diabetes, the ALJ noted this condition but observed that Plaintiff 28 monitored her blood glucose and controlled her condition with medications, did not take insulin, 2 determined that Plaintiff’s allegations about her symptoms were “unsupportive of additional 3 limitations” in the RFC. (A.R. 126). 4 The Court concludes that the above evidence offered for not including additional 5 limitations in the RFC based on Plaintiff’s intellectual limitations, headaches, and diabetes is 6 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 7 Richardson, 402 U.S. at 401. While Plaintiff argues that the record could support a different 8 conclusion as to the evidence, this at most amounts to another “rational interpretation,” meaning 9 that “the decision of the ALJ must be upheld. Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). 10 Moreover, Plaintiff fails to show that the evidence warranted even further limitations than the 11 ALJ assessed. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 n.2 (9th Cir. 2009) 12 (rejecting challenge to RFC determination where the claimant did “not detail what other physical 13 limitations follow from the evidence of his knee and should injuries, besides the limitations 14 already listed in the RFC”). 15 B. LPC Gordon 16 Plaintiff next argues that the ALJ erred in rejecting the opinions of LPC Gordon without 17 adequately addressing the supportability and consistency factors. (ECF No. 15, p. 13). 18 Specifically, Plaintiff asserts there was not a “logical bridge” between the ALJ’s cited evidence 19 and the conclusion to discount LPC Gordon’s opinion. (Id. at 14). 20 Because Plaintiff applied for benefits in May 2020, certain regulations concerning how 21 ALJs must evaluate medical opinions for claims filed on or after March 27, 2017, govern this 22 case. 20 C.F.R. §§ 404.1520c, 416.920c. (AR 118). These regulations set “supportability” and 23 “consistency” as “the most important factors” when determining an opinion’s persuasiveness. 20 24 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). And although the regulations eliminate the “physician 25 hierarchy,” deference to specific medical opinions, and assignment of specific “weight” to a 26 medical opinion, the ALJ must still “articulate how [he or she] considered the medical opinions” 27 and “how persuasive [he or she] find[s] all of the medical opinions.” 20 C.F.R. §§ 404.1520c(a)- 28 (b); 416.920c(a)-(b). 2 clear and convincing or specific and legitimate reasons for rejecting certain medical opinions, the 3 Ninth Circuit has concluded that it does not apply to claims governed by the new regulations: 4 The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians 5 on account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) (“We will not defer or give any specific evidentiary weight, including controlling 6 weight, to any medical opinion(s) . . ., including those from your medical 7 sources.”). Our requirement that ALJs provide “specific and legitimate reasons” for rejecting a treating or examining doctor’s opinion, which stems from the 8 special weight given to such opinions, see Murray, 722 F.2d at 501–02, is likewise 9 incompatible with the revised regulations. Insisting that ALJs provide a more robust explanation when discrediting evidence from certain sources necessarily 10 favors the evidence from those sources—contrary to the revised regulations. 11 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Accordingly, under the new regulations, 12 “the decision to discredit any medical opinion, must simply be supported by substantial 13 evidence.” Id. at 787. 14 In conjunction with this requirement, “[t]he agency must ‘articulate . . . . how persuasive’ 15 it finds ‘all of the medical opinions’ from each doctor or other source, 20 C.F.R. § 404.1520c(b), 16 and ‘explain how [it] considered the supportability and consistency factors’ in reaching these 17 findings, id. § 404.1520c(b)(2).” Woods, 32 F.4th at 792. 18 Supportability means the extent to which a medical source supports the medical opinion by explaining the “relevant . . . objective medical evidence. Id. 19 § 404.1520c(c)(1). Consistency means the extent to which a medical opinion is “consistent . . . with the evidence from other medical sources and nonmedical 20 sources in the claim. Id. § 404.1520c(c)(2). 21 Id. at 791-92. 22 With these standards in mind, the Court now considers the ALJ’s reasons to deem LPC 23 Gordon’s opinion “unpersuasive”: 24 The claimant’s provider Jacqueline Gordon, LPC opined in December 2019 that 25 the claimant’s symptoms have impaired her emotional, cognitive, occupational, and social functioning resulting in her inability to obtain and maintain employment 26 due to difficulty concentrating, focusing, staying on task, disconnect from family members due to ongoing conflict, thought of self-harm due to inability to regulate 27 her emotions (Ex. B8F/11, B9F/23). This opinion is supported by a treatment 28 relationship with the claimant, but pertains to the claimant’s functioning prior to to the application date showing improvement with medication, no hallucinations, 2 and ability to shop in stores and use public transportation (Ex. B5E, B8F/23, B9F/35, B10F/16, B12F/4, B13F/49, B14F/5, 9, 11, 13; hearing testimony). The 3 undersigned finds this opinion unpersuasive. 4 (A.R. 127). 5 The ALJ first noted that LPC Gordon’s treatment relationship with Plaintiff was 6 supportive of the opinion.1 However, as to consistency, the ALJ reasonably concluded that other 7 evidence undermined the opinion. Specifically, LPC Gordon’s review related to functioning prior 8 to the disability period at issue and was not entirely consistent with later record evidence. See 9 Alvarez v. Comm’r of Soc. Sec., No. 1:20-CV-01207-SAB, 2022 WL 3108619, at *9 (E.D. Cal. 10 Aug. 4, 2022) (“[T]he Court notes the ALJ may accord less weight to medical opinions that do 11 not relate to the claimant’s condition during the relevant disability period.”). Among other things, 12 the ALJ cited Plaintiff’s function report, which noted her ability to shop at stores and get around 13 by using public transportation. (A.R. 334). Additionally, the ALJ cited various medical records 14 noting that Plaintiff was doing well on medication and containing normal examination findings. 15 (See, e.g., A.R. 955 (“She reported being stable on current meds. She is receiving counseling and 16 reported benefit from it.”); 980, 995 (noting that Plaintiff was “[o]riented to time, place, person 17 and situation” and her “mood and affect” were appropriate). 18 Moreover, it is worth noting that LPC Gordon’s was just one of the multiple medical 19 opinions that the ALJ reviewed for purposes of determining whether Plaintiff was disabled. 20 Notably, the ALJ found persuasive the opinions of three state agency consultants who assessed 21 1 As the Ninth Circuit also noted, “The revised regulations recognize that a medical source’s relationship 22 with the claimant is still relevant when assessing the persuasiveness of the source’s opinion. See id. § 404.1520c(c)(3). Thus, an ALJ can still consider the length and purpose of the treatment relationship, the 23 frequency of examinations, the kinds and extent of examinations that the medical source has performed or 24 ordered from specialists, and whether the medical source has examined the claimant or merely reviewed the claimant’s records. Id. § 404.1520c(c)(3)(i)–(v). However, the ALJ no longer needs to make specific 25 findings regarding these relationship factors.” Woods, 32 F.4th at 792 (citing § 404.1520c(b)(2)). “A discussion of relationship factors may be appropriate when ‘two or more medical opinions . . . about the 26 same issue are . . . equally well-supported . . . and consistent with the record . . . but are not exactly the same.’ Id. § 404.1520c(b)(3). In that case, the ALJ ‘will articulate how [the agency] considered the other 27 most persuasive factors.’” Id. Here, there is no argument that the opinion at issue was found to be equally well-supported and consistent with the record as another but not exactly the same. 28 1 | limitations mostly consistent with those contained in the RFC. (ECF No. 127-28, citing Exhibits 2 | B1A/8-10, B2A/11-13, B4A/11-13). 3 After viewing the ALJ’s reasoning in light of the record as a whole, the Court concludes 4 | that the ALJ’s decision to discount LPC Gordon’s opinion was supported by substantial evidence 5 | after consideration of the supportability and consistency factors. 6 | I. CONCLUSION AND ORDER 7 Based on the above reasons, the decision of the Commissioner of Social Security is 8 | affirmed. And the Clerk of the Court is directed to close this case. 9 10 IT IS SO ORDERED. 1 | Dated: _ January 6, 2023 [Je heey 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28