1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SANDRA M. FAMBRINI, Case No. 4:19-cv-03701-KAW

8 Plaintiff, ORDER DENYING PLAINTIFF’S

MOTION FOR SUMMARY

9 v. JUDGMENT AN GRANTING

DEFENDANT’S CROSS-MOTION FOR

10 ANDREW SAUL, SUMMARY JUDGMENT 11 Defendant. Re: Dkt. Nos. 17, 18

12 13 Plaintiff Sandra M. Fambrini seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the 14 Commissioner’s final decision, and the remand of this case for payment of benefits, or, in the 15 alternative, for further proceedings. 16 Pending before the Court is Plaintiff’s motion for summary judgment and Defendant’s 17 cross-motion for summary judgment. Having considered the papers filed by the parties, and for 18 the reasons set forth below, the Court DENIES Plaintiff’s motion for summary judgment, and 19 GRANTS Defendant’s cross-motion for summary judgment. 20 I. BACKGROUND 21 Plaintiff filed for Title II and Title XVI benefits on August 6, 2016. (Administrative 22 Record (“AR”) 170, 185.) Plaintiff asserted disability beginning July 15, 2014. (AR 157, 171.) 23 The Social Security Administration (“SSA”) denied Plaintiff’s application initially and on 24 reconsideration. (AR 186-90, 194-98.) Plaintiff then requested a hearing before an 25 Administrative Law Judge (“ALJ”); the hearing was held on September 11, 2018. (AR 30.) 26 Following the hearing, the ALJ denied Plaintiff’s application on February 8, 2019. (AR 27 27-47.) A request for review of the ALJ’s decision was filed with the Appeals Council on May 9, 1 1.) On June 25, 2019, Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. § 2 405(g). (Compl., Dkt. No. 1.) 3 On November 25, 2019, Plaintiff filed her motion for summary judgment. (Pl.’s Mot., 4 Dkt. No. 17.) On December 23, 2019, Defendant filed an opposition and cross-motion for 5 summary judgment. (Def.’s Opp’n, Dkt. No. 18.) No reply was filed. 6 II. LEGAL STANDARD 7 A court may reverse the Commissioner’s denial of disability benefits only when the 8 Commissioner's findings are 1) based on legal error or 2) are not supported by substantial 9 evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 10 (9th Cir. 1999). Substantial evidence is “more than a mere scintilla but less than a 11 preponderance”; it is “such relevant evidence as a reasonable mind might accept as adequate to 12 support a conclusion.” Id. at 1098; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). In 13 determining whether the Commissioner's findings are supported by substantial evidence, the 14 Court must consider the evidence as a whole, weighing both the evidence that supports and the 15 evidence that detracts from the Commissioner's conclusion. Id. “Where evidence is susceptible 16 to more than one rational interpretation, the ALJ's decision should be upheld.” Ryan v. Comm'r 17 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 18 Under Social Security Administration (“SSA”) regulations, disability claims are evaluated 19 according to a five-step sequential evaluation. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 20 1998). At step one, the Commissioner determines whether a claimant is currently engaged in 21 substantial gainful activity. Id. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(b). At 22 step two, the Commissioner determines whether the claimant has a “medically severe impairment 23 or combination of impairments,” as defined in 20 C.F.R. § 404.1520(c). Reddick, 157 F.3d 715 at 24 721. If the answer is no, the claimant is not disabled. Id. If the answer is yes, the Commissioner 25 proceeds to step three, and determines whether the impairment meets or equals a listed impairment 26 under 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d). If this requirement is 27 met, the claimant is disabled. Reddick, 157 F.3d 715 at 721. 1 fourth step in the sequential evaluation process is to determine the claimant's residual functional 2 capacity (“RFC”) or what work, if any, the claimant is capable of performing on a sustained basis, 3 despite the claimant’s impairment or impairments. 20 C.F.R. § 404.1520(e). If the claimant can 4 perform such work, he is not disabled. 20 C.F.R. § 404.1520(f). RFC is the application of a legal 5 standard to the medical facts concerning the claimant's physical capacity. 20 C.F.R. § 404.1545(a). 6 If the claimant meets the burden of establishing an inability to perform prior work, the 7 Commissioner must show, at step five, that the claimant can perform other substantial gainful 8 work that exists in the national economy. Reddick, 157 F.3d 715 at 721. The claimant bears the 9 burden of proof at steps one through four. Bustamante v. Massanari, 262 F.3d 949, 953-954 (9th 10 Cir. 2001). The burden shifts to the Commissioner at step five. Id. at 954. 11 III. DISCUSSION 12 Plaintiff challenges the ALJ’s decision on three grounds: (1) the ALJ failed to adequately 13 account for all of Plaintiff’s impairments; (2) the ALJ failed to consider Plaintiff’s RFC before and 14 immediately following her spinal laminectomy surgery; and (3) the ALJ’s errors are not harmless. 15 (Pl.’s Mot. at 5-8.) 16 A. Whether the ALJ’s RFC Finding Accounts for all of Plaintiff’s Impairments 17 Plaintiff argues that the ALJ failed to account for all of her impairments, specifically her 18 depressive disorder. (Id. at 5.) “An impairment or combination of impairments is not severe if it 19 does not significantly limit one’s physical or mental ability to do basic work activity.” 20 20 C.F.R.§404.1521(a). In determining the severity, the ALJ must consider the combined effect of all 21 impairments. See 42 U.S.C. § 423(d)(2)(B) (1999). Here, the ALJ found that Plaintiff’s 22 depressive disorder does not cause more than minimal limitation in her ability to perform basic 23 mental work activities and is, therefore, nonsevere. (AR 34.) The ALJ made the determination 24 after considering four broad areas of mental functioning, known as the “paragraph B” criteria, set 25 out in the disability regulations for evaluating mental disorders and in the Listing of Impairments. 26 (Id.) The ALJ reached the conclusion that Plaintiff has mild limitations in understanding, 27 remembering, or applying information; no limitation in interacting with others; mild limitations in 1 The ALJ made these determinations based on the treatment records, the medical opinions, and 2 Plaintiff’s admitted activities. (Id.) For example, Plaintiff was able to continue working at a part- 3 time job where she was expected to take orders and help put together floral arrangements. (Id.) 4 Additionally, Plaintiff reported living with roommates and working at a job that required her to 5 interact with the public and coworkers, and she did not describe any interpersonal difficulties. (Id.) 6 Plaintiff contends that the ALJ erred because the ALJ failed to incorporate any mild mental 7 limitation in Plaintiff’s RFC. (Pl.’s Mot. at 5.) However, the ALJ specifically indicated that the 8 RFC finding reflects the degree of limitation the ALJ has found in the “paragraph B” mental 9 function analysis. (AR 35.) “When an ALJ performs the Paragraph B analysis and indicates the 10 ‘degree of limitation’ is incorporated into the RFC, this is sufficient to carry the burden imposed 11 by the Regulations.” Van Houten v. Berryhill, No. 1:17-CV-01238-JLT, 2019 WL 691200, at *14 12 (E.D. Cal. Feb. 19, 2019). The ALJ discussed at length that, in assessing Plaintiff’s RFC, the ALJ 13 considered Plaintiff’s testimony, function reports and questionnaires regarding Plaintiff’s alleged 14 symptoms and limitations. (AR 37-38.) The ALJ found that Plaintiff’s allegation concerning the 15 intensity, persistence and limiting effects of her symptoms are inconsistent with the objective 16 evidence of record. (AR 38.) Further, Plaintiff was able to engage in a somewhat normal level of 17 daily activity and interaction, including caring for her personal needs independently, working on 18 the computer, using public transportation, and socializing with friends. (Id.) Plaintiff also 19 admitted working on a part-time basis. (Id.) Although Plaintiff’s part-time work did not rise to the 20 level of substantial gainful activity, it shows that Plaintiff was not as limited as alleged. (Id.) The 21 ALJ concluded that the physical and mental capabilities required to perform the tasks described 22 above replicate those necessary for obtaining and maintaining employment. (Id.) 23 Furthermore, Plaintiff concedes that she had mild limitations. (Pl.’s Mot. at 5.) Plaintiff 24 argues that the ALJ should have considered the nature of Plaintiff’s past work and her mental 25 ability to return to her stressful and fast-paced job. (Id. at 6.) The Court finds this argument lacks 26 merit, because there are other jobs that exist in the national economy that the ALJ found that 27 Plaintiff could perform. Plaintiff asserts that the ALJ failed to consider the unique factors of her 1 undermined the ALJ’s RFC assessment. Other than citing articles describing all call center jobs, 2 Plaintiff cites no legal authority that shows any connection between the unidentified “unique 3 factors” of her case and the ALJ’s RFC assessment of her mild limitations. Thus, she has failed to 4 carry her burden that the ALJ erred in his RFC assessment or that she cannot perform her past 5 relevant work as a telemarketer. 6 Given the evidence concerning Plaintiff’s abilities and activities identified by the ALJ’s 7 opinion, the Court finds that the ALJ properly considered Plaintiff’s depression and did not err in 8 his RFC assessment. 9 B. Plaintiff’s RFC Before and Immediately Following the Spinal Laminectomy 10 Plaintiff contends that the ALJ did not consider “changes that may have occurred between 11 the pre-surgical, recovery, and post-surgical periods.” (Pl.’s Mot. at 7-8.) In opposition, Defendant 12 argues that Plaintiff does not identify any specific changes or explain how the ALJ’s RFC 13 assessment failed to accommodate for said changes. (Def.’s Opp’n at 9.) Indeed, the ALJ 14 considered relevant evidence in the record related to Plaintiff’s back impairment in making the 15 RFC assessment. (AR 38-39.) 16 In the ALJ’s findings, Plaintiff presented with back pain, tenderness, and leg symptoms 17 after injuring her back in July 2014. (AR 38.) An MRI of the lumbar spine performed in October 18 2014 revealed degenerative disc changes at multiple levels. (AR 39.) The ALJ noted that the 19 records showed Plaintiff received chiropractic treatment with improvement and decreased pain 20 levels. (Id.) A repeat MRI scan performed in January 2015 revealed similar findings. (Id.) 21 Plaintiff underwent lumbar laminectomy in August 2015. (Id.) Plaintiff was discharged after the 22 surgery with a front wheel walker in September 2015. (Id.) The ALJ found that the records 23 following Plaintiff’s surgery documented minimal treatment, and the findings from the physical 24 examination failed to document any focal neurological deficits. (Id.) In May 2017, Plaintiff 25 complained of chronic back pain and reported that she never received physical therapy. (Id.) The 26 ALJ determined that the findings from the physical examination were unremarkable as the 27 treatment plan included consideration of physical and/or occupational therapy. (Id.) Finally, the 1 assessed greater limitations than the opinion of the state agency physician, who opined that 2 Plaintiff was capable of performing a range of light-exertion work. (Id.) 3 Lastly, Plaintiff appears to argue that the ALJ may not have considered her pre-surgical 4 condition in the RFC. (Pl.’s Mot. at 8.) This argument is unavailing, because the RFC 5 determination should be based on her physical ability post-recovery. 6 Based on the forgoing, the Court finds that the ALJ did not err in failing to consider 7 Plaintiff’s RFC before and immediately following her spinal laminectomy surgery. 8 C. Whether the ALJ’s errors were harmless. 9 Finally, Plaintiff argues that the ALJ’s errors were not harmless and warrant remand. (Pl.’s 10 Mot. at 8.) Plaintiff bears the burden of demonstrating there are harmful errors in the ALJ’s 11 decision. Shinseki v. Sanders, 556 U.S. 396, 410 (2009). A decision of the ALJ will not be 12 reversed for errors that are harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 13 “Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion 14 that must be upheld.” (Id.) 15 Plaintiff also argues that the ALJ erred in not finding that she was disabled pursuant to 16 Grid rule 201.14, which mandates a finding of “disabled” for individuals of advanced age (50 17 years and above), who are limited to sedentary work, have a high school education, are unable to 18 perform their past work, and do not have transferable skills to any other jobs that exist in 19 significant numbers in the national economy. (Pl.’s Mot. at 8 (citing 20 C.F.R. Part 404, Subpart 20 P, App. 2 § 201.14).) In opposition, Defendant contends that Plaintiff mistakenly believes that the 21 grid rules unambiguously direct a finding of disability, but that the mistake is irrelevant because 22 the ALJ found that Plaintiff could perform past relevant work. (Def.’s Opp’n at 11.) Since 23 Plaintiff has not met her burden that she cannot perform her past relevant work at Step 4, there 24 was no error. See discussion, supra, Part III.A. 25 In the present case, the Court finds that Plaintiff fails to establish harmful error, because 26 she has not established that any error occurred. See discussions, supra, Part III.A-B. Thus, in the 27 absence of any error, Plaintiff’s motion must be denied on this basis. 1 IV. CONCLUSION 2 For the reasons set forth above, the Court DENIES Plaintiff's motion for summary 3 || judgment, and GRANTS Defendant’s cross-motion for summary judgment. 4 The Clerk may close the case. 5 IT IS SO ORDERED. 6 Dated: November 30, 2020 . 7 Jw A. WESTMORE 8 United States Magistrate Judge 9 10 11 a 12

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