1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 Case No.: 20-cv-0669-BLM 10 CHAD GORDON JANKO,

11 Plaintiff, ORDER DENYING PLAINTIFF’S

REQUEST TO REVERSE AND REMAND

12 v. THE ALJ’S DECISION AND AFFIRMING

THE DECISION OF THE

13 KILOLO KIJAKAZI, Acting Commissioner of

COMMISSIONER

Social Security, 14 Defendant. [ECF No. 14] 15 16 17 Plaintiff Chad Gordon Janko (“Plaintiff”) brought this action for judicial review of the Social 18 Security Commissioner’s (“Defendant” or “Commissioner”) denial of his claim for disability 19 insurance benefits. See ECF No. 1. Before the Court are Plaintiff’s Opening Brief [ECF No. 14], 20 Defendant’s Opposition to Plaintiff’s Brief [ECF No. 15], and Plaintiff’s Reply Brief [ECF No. 18]. 21 After careful consideration of the pleadings and supporting documents, the Court DENIES 22 Plaintiff’s request to reverse the ALJ’s decision and AFFIRMS the Commissioner’s decision. 23 PROCEDURAL BACKGROUND 24 Plaintiff filed an application for a period of disability and disability insurance benefits on 25 February 8, 2017, alleging disability commencing November 1, 2014. Administrative Record 26 (“AR”) at 161. The claim was denied initially on April 18, 2017, and upon reconsideration on 27 July 31, 2017, resulting in Plaintiff’s request for an administrative hearing on August 23, 2017. 28 Id. 1 On December 3, 2018, a hearing was held by Administrative Law Judge (“ALJ”) Randolph 2 Schum. Id. at 176-207. Plaintiff and an impartial vocational expert (“VE”) testified at the 3 hearing. Id. On February 7, 2019, ALJ Schum issued a written order finding Plaintiff was not 4 disabled because he was capable of performing his past relevant work as an investment analyst. 5 Id. at 161-170. The ALJ’s decision became the final decision of the Commissioner on February 6 18, 2020, when the Appeals Council denied Plaintiff’s request for review. Id. at 1-4. 7 ALJ’s DECISION 8 Initially, the ALJ determined that Plaintiff had not engaged in substantial gainful activity 9 during the relevant time period (since November 1, 2014). Id. at 163. At step two, he 10 considered all of Plaintiff’s medical impairments and determined that the following impairments 11 were “severe” as defined in the regulations: “degenerative changes of the lumbar spine, a history 12 of migraine headaches, non-specific myelopathies and sensory neuropathies with a history of 13 Lyme disease, and a seizure disorder (20 CFR 404.1520(d)).” Id. At step three, the ALJ found 14 that Plaintiff’s medically determinable impairments or combination of impairments did not meet 15 or medically equal the severity of one of the listed impairments. Id. at 165. At step four, the 16 ALJ considered Plaintiff’s impairments and determined that his residual functional capacity 17 (“RFC”) permitted him 18 to perform the full range of light work as defined in 20 CFR 404.1567(b) ((lift and 19 carry ten pounds frequently and 20 pounds occasionally; sit for six hours in an 20 eight-hour workday and stand/walk for six hours each in an eight-hour workday. He should not climb ladders, ropes, and scaffolds, but could occasionally climb 21 ramps and stairs. He should avoid concentrated exposure to extreme cold and heat, loud noise, and pulmonary irritants such as fumes, odors, dust, and gases, 22 and all exposure to unprotected heights and moving and dangerous machinery. 23

24 Id. at 165. The ALJ presented two hypotheticals to the VE who opined that a person with the 25 identified limitations could perform Plaintiff’s past relevant work. Id. at 204-05. ALJ Schum 26 determined that Plaintiff was not disabled because Plaintiff’s RFC permitted him to perform “past 27 relevant work as an investment analyst.” Id. at 169. 28 1 STANDARD OF REVIEW 2 Section 405(g) of the Social Security Act permits unsuccessful applicants to seek judicial 3 review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of judicial review is 4 limited in that a denial of benefits will not be disturbed if it is supported by substantial evidence 5 and contains no legal error. Id.; see also Miner v. Berryhill, 722 Fed. Appx. 632, 633 (9th Cir. 6 2018) (We review the district court’s decision de novo, disturbing the denial of benefits only if 7 the decision “contains legal error or is not supported by substantial evidence.”) 8 (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). In steps one through four 9 of the sequential analysis, the burden is on the claimant to demonstrate a severe impairment 10 and an inability to perform past work. At step five, if there has not yet been a determination, 11 the burden shifts to the Commissioner to demonstrate the claimant is not disabled. See 12 Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). 13 Substantial evidence is “more than a mere scintilla but may be less than a 14 preponderance.” Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (quoting Molina v. Astrue, 15 674 F.3d 1104, 1110–11 (9th Cir. 2012) (quotation marks and citations omitted), 16 . It is relevant evidence that a reasonable person might accept as 17 adequate to support a conclusion after considering the entire record. Id.; see also Biestek v. 18 Berryhill, 139 S.Ct. 1148, 1154 (2019). “In determining whether the Commissioner’s findings 19 are supported by substantial evidence, [the court] must review the administrative record as a 20 whole, weighing both the evidence that supports and the evidence that detracts from the [ALJ’s] 21 conclusion.” Laursen v. Barnhart, 127 Fed. Appx. 311, 312 (9th Cir. 2005) (quoting Reddick v. 22 Chater, 157 F.3d 715, 720 (9th Cir. 1998)). Where the evidence can reasonably be construed 23 to support more than one rational interpretation, the court must uphold the ALJ’s 24 decision. See Ahearn, 988 F.3d at 1115 (citing Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 25 2001)). This includes deferring to the ALJ’s credibility determinations and resolutions of 26 evidentiary conflicts. See Tanielu v. Saul, 839 Fed. Appx. 193, 194 (9th Cir. 2021) 27 (citing Ahearn, 988 F.3d at 1115 (“[t]he ALJ is responsible for determining credibility, resolving 28 conflicts in medical testimony, and for resolving ambiguities,” and “we reverse only if the ALJ's 1 decision was not supported by substantial evidence in the record as a whole”)). 2 Even if the reviewing court finds that substantial evidence supports the ALJ’s conclusions, 3 the court must set aside the decision if the ALJ failed to apply the proper legal standards in 4 weighing the evidence and reaching his or her decision. See Miner, 722 Fed. Appx. at 5 633. Section 405(g) permits a court to enter judgment affirming, modifying, or reversing the 6 Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter 7 to the Social Security Administration for further proceedings. Id. 8 DISCUSSION 9 I. Whether there is Substantial Evidence Supporting the ALJ’s RFC Determination 10 Plaintiff argues the “ALJ erred in failing to include the mild mental limitations that he 11 assessed in the residual functional capacity assessment and in the hypothetical to the vocational 12 expert.” ECF No. 14. at 5. Plaintiff explains that the ALJ “found mild limitations in social 13 functioning and mild limitations in concentration, persisting and maintaining pace” and “erred in 14 failing to include the mild mental limitations” in the RFC assessment. Id. at 6 (citing AR 165, 15 230). 16 Defendant argues that the ALJ did not err and that his decision is supported by substantial 17 evidence in the record. ECF No. 15 at 6-8. Initially, Defendant states that the ALJ properly 18 determined that Plaintiff’s mild mental limitations did not need to be included in the RFC because 19 “they stemmed from Plaintiff’s use (and discontinuance) of medication prescribed for seizures 20 (Klonopin)” rather than from “any medically determinable impairment.” Id. at 6. Second, 21 Defendant asserts that the “ALJ identified substantial evidence in the record that supported his 22 finding that the record did not establish mental limitations that would significantly impair 23 Plaintiff’s ability to work.” Id. 24 In his reply, Plaintiff states that the ALJ found that Plaintiff “suffered from the medically 25 determinable impairments of depression and a mood disorder” and that as a result, Plaintiff 26 “suffered mild mental limitations in interacting with others and concentration persistence and 27 pace.” ECF No. 18 at 3. Plaintiff argues that “[s]ince [Plaintiff’s] past relevant work was the 28 highest level of skill contained in the Dictionary of Occupational Titles and this job also requires 1 intense interaction with others even mild limitations could prevent [Plaintiff] from returning to 2 his past relevant work.” Id. at 3-4. 3 A. Relevant Law 4 “The ALJ assesses a claimant’s RFC ‘based on all the relevant evidence in [the] case 5 record.” Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017); see also Khal v. Berryhill, 6 690 Fed.Appx 499, 502 (9th Cir. 2017) (same). An ALJ must consider the limiting effects of all 7 impairments, including those which are non-severe, in determining RFC. Medlock v. Colvin, No. 8 CV 15-9606-KK, 2016 WL 6137399, at *5 (C.D. Cal. Oct. 20, 2016). However, consideration 9 does not require the inclusion of every impairment in the final RFC if the record indicates “the 10 non-severe impairment does not cause a significant limitation in the claimant’s ability to work.” 11 Kendall v. Saul, 2021 WL 736268, at *13 (E.D. Cal. Feb. 25, 2021) (citation and quotation 12 omitted); see also Koshak v. Berryhill, 2018 WL 4519936, at *8 (C.D. Cal. Sept. 19, 2018) 13 (same); Banks v. Berryhill, 2018 WL 163127, at *4 (C.D. Cal. Apr. 2, 2018) (same). “So long as 14 the ALJ ‘actually reviews the record and specifies reasons supported by substantial evidence for 15 not including the non-severe impairment [in the RFC determination], the ALJ has not committed 16 legal error.’” Kendall, 2021 WL 73628, at *13 (E.D. Cal. Feb. 25, 2021) (citation and quotation 17 omitted); see also McIntosh v. Berryhill, 2018 WL 3218105, at *4 (C.D. Cal. June 29, 2018) 18 (because the ALJ concluded that a mental impairment caused no more than minimal restrictions, 19 there was no requirement to include it in the claimant’s RFC). 20 B. Analysis 21 Initially, the Court notes that Plaintiff’s argument misstates the ALJ’s findings. While 22 Plaintiff correctly states that the ALJ found that Plaintiff had “medically determinable mental 23 impairments of depression and a mood disorder”, Plaintiff ignored the rest of the ALJ’s statement 24 which was that these impairments “considered singly and in combination, do not cause more 25 than minimal limitation in the claimant’s ability to perform basic mental work activities and 26 therefore are nonsevere.” AR at 164. Similarly, while the ALJ did find that Plaintiff had a mild 27 limitation in interacting with others and in concentration, persistence, and pace, the ALJ did so 28 with respect to the determinations at steps 2 and 3, not the determination at step 4. Id. at 164- 1 65. The ALJ conducted a detailed analysis of the paragraph B criteria and determined that 2 Plaintiff had no or mild limitations on all four criteria and that, as a result, the mental impairments 3 were non-severe. Id. At step 4, the ALJ determined that there were no mental limitations 4 required for the RFC. Id. at 165. As a result, the ALJ did not commit a legal error or apply an 5 improper legal standard. 6 There also is substantial evidence in the record supporting the ALJ’s decision that 7 Plaintiff’s RFC did not include any mental limitations. First, the medical opinion evidence 8 supports the ALJ’s decision. Plaintiff does not identify any doctor who opined that Plaintiff has 9 mental impairments that impact his ability to work. ECF Nos. 14 & 18. Rather, Plaintiff merely 10 speculates that the identified mild limitations impact his ability to work as a stockbroker. 11 ECF No. 14 at 6-7. In contrast, the ALJ identified several medical opinions supporting his 12 conclusion. AR at 164-69. For example, the ALJ gave great weight to the opinions of the state 13 agency consultants, especially Dr. Donovan, who carefully analyzed Plaintiff’s mental health 14 issues and concluded that any mental impairment was not of disabling proportions. Id. at 164 15 & 230; see also id. at 217-18 (Dr. James Mendelson opined that “[t]aking all things into 16 consideration, […] while [Plaintiff] may have a mental impairment, it is not believed to be of 17 disabling proportions” and that Plaintiff “remains capable of adequately participating in a variety 18 of activities necessary for personal care, independent living, and reasonable social / avocational 19 pursuits.”); id. at 233 (Dr. Pamela Ombres opined that “[t]he initial decision was supported by 20 the evidence in the file and this has not changed on reconsideration.”). 21 Second, as noted by the ALJ, the longitudinal record supports the medical opinions and 22 the ALJ provided a detailed analysis of the medical records and why they support his RFC 23 determination. AR at 164-69. To establish his argument that the record supports “at least mild 24 mental limitations”, Plaintiff merely states 25 [t]he record documents symptoms of mental slowing. AR 84. Objective testing 26 by EEG in January 2019 evidenced mild focal slowing on the right temporal region 27 of the brain. AR 93 and 124. Treatment records from a neuropsychological evaluation in July 2017 evidenced mental areas of reduced functionality. AR 28 1 dacuteiv ittoie sa ogfe dnaeirlya ll ivminegd.i c aAlR c 7o0n3d.i t iMonr.. J aAnRk o7 0ca6r.r i eMs ra. dJaiangknoo saisls oo f sau fmfeorosd f rdoismo rdtheer 2 severe impairment of migraine headaches. ALJ decision at step2. AR 163. 3 ECF No. 14 at 6. Plaintiff does not provide any medical opinion, legal authority, or substantive 4 argument to support his position; he merely identifies a few individual records that support 5 a different conclusion than the one identified by the ALJ. This showing is insufficient to 6 undermine the ALJ’s determination. See Tunstall v. Berryhill, No. 1:17-cv-00922-BAM, 2019 WL 7 1170480 at *5 (E.D. Cal. Mar. 13, 2019) (citing Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 8 1993) (holding that “[t]he mere existence of an impairment is insufficient proof of a disability.”)) 9 Moreover, the records identified by Plaintiff do not support his position that there are mild 10 mental impairments that limit his ability to work. For example, the EEG cited by Plaintiff—from 11 2017 not 2019—was followed up by a June 15, 2017 neuropsychological evaluation noting that 12 Plaintiff was “[r]ecovering from the fact of high-dose benzodiazepines.” AR 84. Similarly, in the 13 July 2017 neuropsychological evaluation, Dr. Joanne M. Hamilton noted that “[a]s [Plaintiff] 14 recovers from the effects of high dose benzodiazepines, his cognitive efficiency should continue 15 to improve.” Id. at 586. Neither of these opinions support Plaintiff’s argument that he has 16 mental limitations that impact his ability to work and should have been included in the RFC. 17 With regard to Plaintiff’s remaining statements regarding chronic pain, mood disorder, and 18 migraine headaches, Plaintiff does not provide any information, analysis or medical support as 19 to how these factors create mental limitations that impact Plaintiff’s ability to work. Further, the 20 medical records undermine some of Plaintiff’s statements. For example, in March 2017, Dr. 21 Tracy Chunyang Wang noted that Plaintiff’s migraines had stabilized. Id. at 574. And, on May 22 24, 2018, Dr. Wang stated that since Plaintiff’s last visit, he has shown “much improve[ment]” 23 and reported feeling more like himself. Id. at 777-80. Similarly, on August 22, 2018, Dr. Bradley 24 H. Chesler opined that Plaintiff appeared “alert, oriented, cognitive function intact, good eye 25 contact, judgement and insight good, speech clear.” Id. at 1009. 26 Third, Plaintiff admitted that his mental impairments, if any, did not impact his ability to 27 work. Specifically, during Plaintiff’s hearing before the ALJ, the ALJ inquired whether Plaintiff 28 1 has “any type of psychological or mental issues”, Plaintiff responded in the negative, advising 2 the ALJ that “No. […] I dealt with some difficulty mentally after getting off of all those 3 pharmaceuticals. But I would say that’s probably a normal occurrence.” Id. at 183. The ALJ 4 observed that during the hearing, Plaintiff was “articulate and thorough in his discussion about 5 the cause of his condition and provided a significant treatment history.” Id. at 169. Further, on 6 May 25, 2018, Dr. Wang opined that Plaintiff was “[f]ollowing complex commands. Speech was 7 intact to naming, repetition, fluency and comprehension. Normal attention. Mini-mental status 8 examination was intact.” Id. at 783-84. 9 For the reasons set forth above, there is substantial evidence supporting the ALJ’s 10 decision to not include Plaintiff’s mild mental limitations in the RFC. The substantial evidence 11 includes numerous medical opinions, significant amounts of medical tests and analyses, and 12 Plaintiff’s own statements. In contrast, Plaintiff’s arguments are mostly unsupported by facts 13 and law and, at most, point to another theoretical determination the ALJ could have made. 14 Parks v. Astrue, 304 Fed.Appx. 503, 506 (9th Cir. 2008) (upholding ALJ’s determination that 15 plaintiff’s impairments were not severe, despite some medical opinions from examining 16 psychologist finding mild functional limitations, because the ALJ’s determination was supported 17 by substantial evidence); see also Robles v. Saul, No. 1:20-cv-00081-SKO, 2021 WL 620671, at 18 *3 (E.D. Cal. Feb. 17, 2021) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“The 19 claimant carries the initial burden of proving a disability in steps one through four of the 20 analysis.”)). Even if there was evidence supporting Plaintiff’s arguments, the fact that there is 21 substantial evidence supporting the ALJ’s decision means the ALJ did not err and the Court must 22 affirm the decision. See Ahearn, 988 F.3d at 1115 (where the evidence can reasonably be 23 construed to support more than one rational interpretation, the court must uphold the ALJ’s 24 decision). Accordingly, the Court finds the ALJ did not err and that there is substantial evidence 25 supporting the decision. 26 /// 27 /// 28 /// 1 II. Whether the ALJ Erred by Not Including a Mental Limitation in the 2 Hypothetical Questions to the Vocational Expert 3 Plaintiff argues “[t]he ALJ erred in failing to include the mild mental limitations that he 4 assessed in [] the hypothetical to the vocational expert.” ECF No. 14 at 5. 5 A. Relevant Law 6 When posing questions to a vocational expert, an ALJ need only include limitations 7 supported by substantial evidence. See Lundell v. Colvin, 553 Fed. Appx. 681, 684 (9th Cir. 8 2014) (ALJ did not err in assessing vocational evidence presented because the hypothetical 9 question posed included only those limitations supported by substantial evidence) (citing Greger 10 v. Barnhart 464 F.3d 968, 973 (9th Cir.2006) (discussing the standard for hypotheticals posed 11 to vocational experts)); see also Salerno v. Astrue, 266 Fed.Appx. 570, 572 (9th Cir. 2008) (an 12 ALJ is free to limit restrictions presented in the hypothetical to the VE if the decision to do so is 13 supported by the evidence); see also Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir. 1989) 14 (same). 15 B. Analysis 16 Plaintiff argues that the ALJ erred in not including mental limitations in the hypotheticals 17 posed to the vocational expert. ECF No. 14 at 5. However, as discussed above, the ALJ’s 18 decision to not include the mild mental limitations in the RFC was supported by substantial 19 evidence in the record. See supra I.B. Because there is substantial evidence supporting the 20 ALJ’s determination that Plaintiff’s RFC did not include any mental limitations, the ALJ did not 21 err by choosing not to include any mental limitations in the hypotheticals posed to the vocational 22 expert.1 Accordingly, the Court finds that the ALJ did not err in omitting mental limitations not 23 supported by substantial evidence in the hypotheticals posed to the vocational expert. See Sisco 24 v. Colvin, No. 13-cv-1817-LHK, 2014 WL 2859187, at *8 (N.D. Cal. Jun. 20, 2014); see also 25 Magallanes, 881 F.2d at 756-57 (holding that an ALJ may limit hypotheticals to restrictions

26 27 1 The Court notes that Plaintiff’s counsel questioned the VE about situations in which a person had limitations due to pain from nerve damage, nausea, and vomiting but did not ask the VE 28 1 || supported by substantial evidence on the record). 2 CONCLUSION 3 Based on the above, the Court DENIES Plaintiff's request to reverse and remand the 4 || decision, AFFIRMS the decision of the Commissioner, and DISMISSES this action with 5 prejudice. The Clerk of the Court shall enter judgment in accordance with this Order. 6 IT IS SO ORDERED. 7 ||Dated: 9/17/2021 5, by “Me re 8 Hon. Barbara L. Major 9 United States Maqistrate Judae

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17