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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 OTILIA H., an Individual, Case No.: 2:18-09181 ADS

12 Plaintiff,

13 v. MEMORANDUM OPINION AND ORDER

14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16 17 I. INTRODUCTION 18 Plaintiff Otilia H.1 (“Plaintiff”) challenges the Defendant Andrew M. Saul2, 19 Commissioner of Social Security’s (hereinafter “Commissioner” or “Defendant”) denial 20

21 1 Plaintiff’s name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 22 Administration and Case Management of the Judicial Conference of the United States. 2 The Complaint, and thus the docket caption, do not name the Commissioner. The 23 parties list Nancy A. Berryhill as the Acting Commissioner in the Joint Submission. On June 17, 2019, Saul became the Commissioner of Social Security. Thus, he is 24 automatically substituted as the defendant under Federal Rule of Civil Procedure 25(d). 1 of her application for a period of disability and disability insurance benefits (“DIB”). 2 Plaintiff contends that the Administrative Law Judge (“ALJ”) improperly rejected the 3 opinion of the consultative psychologist. For the reasons stated below, the decision of 4 the Commissioner is affirmed, and this matter is dismissed with prejudice. 5 II. PROCEEDINGS BELOW

6 A. Procedural History 7 Plaintiff protectively filed her application for DIB on July 30, 2015, alleging 8 disability beginning April 22, 2015. (Administrative Record “AR” 137-38). Plaintiff’s 9 claims were denied initially December 10, 2015 (AR 53), and upon reconsideration on 10 February 24, 2016 (AR 88-92). A hearing was held before ALJ Mary L. Everstine on 11 July 31, 2017. (AR 38-52). Plaintiff, represented by counsel, appeared and testified, 12 through a Spanish interpreter, at the hearing, as did a vocational expert, Kelly Bartlett. 13 (Id.) 14 On November 16, 2017, the ALJ found that Plaintiff was “not disabled” within the 15 meaning of the Social Security Act.3 (AR 18-37). The ALJ’s decision became the 16 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request for

17 review on August 24, 2018. (AR 1-9). Plaintiff then filed this action in District Court on 18 October 25, 2018, challenging the ALJ’s decision. [Docket (“Dkt.”) No. 1]. 19 20 21 22

3 Persons are “disabled” for purposes of receiving Social Security benefits if they are 23 unable to engage in any substantial gainful activity owing to a physical or mental impairment expected to result in death, or which has lasted or is expected to last for a 24 continuous period of at least 12 months.

(d)(1)(A). 1 On April 8, 2019, Defendant filed an Answer, as well as a copy of the Certified 2 Administrative Record. [Dkt. Nos. 16, 17]. The parties filed a Joint Stipulation on July 3 8, 2019. [Dkt. No. 18]. The case is ready for decision.4 4 B. Summary of ALJ Decision After Hearing 5 In the decision (AR 24-34), the ALJ followed the required five-step sequential

6 evaluation process to assess whether Plaintiff was disabled under the Social Security 7 Act.5

(a). At step one, the ALJ found that Plaintiff had not been 8 engaged in substantial gainful activity since April 22, 2015, the alleged onset date. (AR 9 26). At step two, the ALJ found that Plaintiff had the following severe impairments: 10 (a) history of excision of left acoustic neuroma with cranioplasty in September 2006 11 with left ear hearing loss; (b) intermittent vertigo; (c) headaches; and (d) dysthymic 12 disorder. (AR 26). At step three, the ALJ found that Plaintiff “does not have an 13 impairment or combination of impairments that meets or medically equals the severity 14 of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 15 404.1520(d), 404.1525, 404. 1526).” (AR 26). 16

17 4 The parties filed consents to proceed before the undersigned United States Magistrate Judge, pursuant to

(c), including for entry of final Judgment. [Dkt. Nos. 18 9, 10]. 5 The ALJ follows a five-step sequential evaluation process to assess whether a claimant 19 is disabled: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant 20 have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of 21 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 22 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual 23 functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. Lester v. Chater,

, 828 n.5 (9th Cir. 1995) 24 (citing

). 1 The ALJ then found that Plaintiff had the Residual Functional Capacity (“RFC”)6 2 to perform light work as defined in

(b), 7 except: 3 no work at unprotected heights or operating hazardous machinery; no work requiring bilateral hearing; no loud background noises without use 4 of ear protection; and no greater than simple routine tasks.

5 (AR 28). 6 At step four, based on Plaintiff’s RFC and the vocational expert’s testimony, the 7 ALJ found that Plaintiff is capable of performing her past relevant work as a 8 packager/sorter. “This work does not require the performance of work-related activities 9 precluded by the [Plaintiff’s] residual functional capacity (20 CFR 404. 1565).” (AR 33- 10 34). With this finding, the ALJ did not proceed to step five. Accordingly, the ALJ 11 determined that Plaintiff had not been under a disability, as defined in the Social 12 Security Act, from April 22, 2015, through the date of the decision, November 16, 2017. 13 (AR 34). 14 15 16 17 6 An RFC is what a claimant can still do despite existing exertional and nonexertional 18 limitations. See

(a)(1). 7 “Light work” is defined as 19 lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be 20 very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing 21 and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do 22 substantially all of these activities.

(b); see also Rendon G. v. Berryhill,

, at *3 n.6 23 (C.D. Cal. May 7, 2019).

24 1 III. ANALYSIS 2 A. Issue on Appeal 3 Plaintiff raises one issue for review: whether the ALJ failed to provide specific 4 and legitimate reasons to reject the opinion of the consultative psychologist? [Dkt. No. 5 18, Joint Stipulation, p. 4].

6 B. Standard of Review 7 A United States District Court may review the Commissioner’s decision to deny 8 benefits pursuant to

(g). The District Court is not a trier of the facts but 9 is confined to ascertaining by the record before it if the Commissioner’s decision is 10 based upon substantial evidence. Garrison v. Colvin,

(9th Cir. 2014) 11 (District Court’s review is limited to only grounds relied upon by ALJ) (citing Connett v. 12 Barnhart,

(9th Cir. 2003)). A court must affirm an ALJ’s findings of 13 fact if they are supported by substantial evidence and if the proper legal standards were 14 applied. Mayes v. Massanari,

(9th Cir. 2001). An ALJ can satisfy 15 the substantial evidence requirement “by setting out a detailed and thorough summary 16 of the facts and conflicting clinical evidence, stating his interpretation thereof, and

17 making findings.” Reddick v. Chater,

(9th Cir. 1998) (citation 18 omitted). 19 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a specific 20 quantum of supporting evidence. Rather, a court must consider the record as a whole, 21 weighing both evidence that supports and evidence that detracts from the Secretary’s 22 conclusion.” Aukland v. Massanari,

(9th Cir. 2001) (citations and 23 internal quotation marks omitted). “‘Where evidence is susceptible to more than one 24 rational interpretation,’ the ALJ’s decision should be upheld.” Ryan v. Comm’r of Soc. 1 Sec.,

(9th Cir. 2008) (citing Burch v. Barnhart,

, 679 2 (9th Cir. 2005)); see Robbins v. Soc. Sec. Admin.,

(9th Cir. 2006) (“If 3 the evidence can support either affirming or reversing the ALJ’s conclusion, we may not 4 substitute our judgment for that of the ALJ.”). However, the Court may review only “the 5 reasons provided by the ALJ in the disability determination and may not affirm the ALJ

6 on a ground upon which he did not rely.” Orn v. Astrue,

(9th Cir. 7 2007) (citation omitted). 8 Error in a social security determination is subject to harmless error analysis. 9 Ludwig v. Astrue,

(9th Cir. 2012). Error is harmless if “it is 10 inconsequential to the ultimate nondisability determination” or, despite the legal error, 11 “the agency's path may reasonably be discerned.” Treichler v. Comm'r of Soc. Sec. 12 Admin.,

(9th Cir. 2014). 13 C. The ALJ Properly Evaluated The Medical Evidence 14 Plaintiff contends that the ALJ erred in rejecting the moderate limitations 15 assessed by the consultative psychological examiner, Kara Cross, Ph.D. Defendant 16 argues that the ALJ gave proper weight to Dr. Cross’ opinion.

17 1. Standard for Weighing Medical Opinions 18 The ALJ must consider all medical opinion evidence. 20 C.F. R. § 404.1527(b). 19 “As a general rule, more weight should be given to the opinion of a treating source than 20 to the opinion of doctors who do not treat the claimant.” Lester v. Chater,

, 21 830 (9th Cir. 1995) (citing Winans v. Bowen,

(9th Cir. 1987)). Where 22 the treating doctor’s opinion is not contradicted by another doctor, it may only be 23 rejected for “clear and convincing” reasons.

(citing Bayliss v. Barnhart,

(9th Cir. 2005)). “If a treating or examining doctor’s opinion is contradicted 1 by another doctor’s opinion, an ALJ may only reject it by providing specific and 2 legitimate reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 871

(9th Cir. 2017) (quoting Bayliss,

). 4 “Substantial evidence” means more than a mere scintilla, but less than a 5 preponderance; it is such relevant evidence as a reasonable person might accept as

6 adequate to support a conclusion.” Lingenfelter v. Astrue,

(9th Cir. 7 2007) (citing Robbins,

). “The ALJ can meet this burden by setting out a 8 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 9 interpretation thereof, and making findings.” Magallanes v. Bowen,

, 751 10 (9th Cir. 1989) (citation omitted); see also Tommasetti v. Astrue,

, 1041 11 (9th Cir. 2008) (finding ALJ had properly disregarded a treating physician’s opinion by 12 setting forth specific and legitimate reasons for rejecting the physician’s opinion that 13 were supported by the entire record). 14 As noted above, an RFC is what a claimant can still do despite existing exertional 15 and nonexertional limitations. See

(a)(1). Only the ALJ is 16 responsible for assessing a claimant’s RFC. See

(c). “It is clear that

17 it is the responsibility of the ALJ, not the claimant’s physician, to determine residual 18 functional capacity.” Vertigan v. Halter,

(9th Cir. 2001) (citing 20

). 20 2. The Psychological Evaluation At Issue 21 On October 24, 2015, Dr. Cross performed a Comprehensive Psychological 22 Evaluation/Complete Mental Status Evaluation of Plaintiff, at the request of the agency, 23 and submitted a seven-page written summary of evaluation. (AR 282-88). The 24 1 prognosis assessed by Dr. Cross states: “From the psychiatric standpoint, the claimant’s 2 condition is deemed FAIR.” (AR 287). 3 In the Functional Assessment section of Dr. Cross’ report, she gave the following 4 opinions of Plaintiff: 5 Dr. Cross assessed that Plaintiff had “No Limitations” in (1) Ability to understand safety rules and regulations and to maintain safety on the 6 job; (2) Ability to accept instructions from supervisors; and (3) Ability to perform work activities without special or additional supervision. 7 Dr. Cross assessed that Plaintiff was “Not Significantly Limited” in 8 (1) Ability to understand, remember and carry out simple one or two step task instructions; (2) Ability to do detailed and complex tasks; 9 (3) Ability to associate day to day work activity; and (4) Ability to relate to co-workers and the public in an appropriate manner. 10 Dr. Cross assessed that Plaintiff was “Moderately Limited” in (1) Ability 11 to understand, remember, carry out simple one or two step job instructions over an 8 hour day 40 hour work week without emotionally 12 decompensating; (2) Ability to do detail and complex tasks over an 8 hour day 40 hour work week without emotionally decompensating; 13 (3) Ability to maintain concentration and attention; (4) Ability to maintain reasonable persistence and pace; and (5) Ability to maintain 14 regular attendance in the work place and perform activities on a consistent basis. 15

16 (AR 287-88).

17 Plaintiff argues that the ALJ failed to provide specific and legitimate reasons to 18 reject the moderate limitations assessed by Dr. Cross. [Dkt. No. 18, p. 4]. 19 3. The ALJ Gave Proper Weight to the Medical Opinion 20 As set forth above, the ALJ found that Plaintiff had the RFC to perform light work 21 with certain exceptions, including “no greater than simple routine tasks.” (AR 28). In 22 support of this RFC, the ALJ gave persuasive weight to the opinion of Dr. Cross, stating: 23 Persuasive weight is given to the opinion by the psychological CE at [AR 282-88], based on supportability with medical signs and objective 24 findings, consistency with the record, and area of specialization. As 1 noted above, the claimant reported a minimal history of mental health treatment, naming a Dr. Montes as her psychologist although the 2 medical record fails to provide documentation of treatment by Dr. Montes. She had a generally normal mental status exam, presenting as 3 cooperative, open, friendly and although she exaggerated her complaints, she did not show evidence of manipulation. She had 4 normal thought processes, denied any auditory or visual hallucinations, had normal speech, normal orientation to person, place, time and 5 purpose, had normal memory, adequate fund of knowledge, normal concentration and calculation, and normal judgment and reasoning. 6 Although she had dysthymic mood, her affect was congruent with mood. The claimant reported engaging in activities of daily living of 7 running errands, shopping, performing household chores, going for short walks, paying bills, managing money, maintaining “good 8 relationships” with family and friends. On a daily basis, the claimant was capable of bathing, dressing, picking up after herself, sweeping, 9 vacuuming, folding the laundry, cooking, using a microwave oven, listening to the radio, using a cell phone, using a landline phone, 10 reading, calling friends, and having family visit her. Thus, based on the claimant’s activities, a normal mental status exam, and general lack of 11 psychological abnormalities, the opinion by the psychological CE that the claimant was not significantly limited in performing simple 12 repetitive tasks despite dysthymic disorder is given persuasive weight. (AR 32). 13 14 Accordingly, contrary to Plaintiff’s arguments, the ALJ did not reject any of the 15 limitations assessed by Dr. Cross. Nor did the ALJ simply ignore the “moderate 16 limitations” as Plaintiff also argues. Rather, the ALJ did a detailed review of the 17 findings and assessments of Dr. Cross in the decision.8 18 19

20 8 In analyzing and holding at step three that Plaintiff does not have an impairment or combination of impairments that meets a listed impairment, the ALJ considered 21 whether the “paragraph B” criteria were satisfied. In finding that the criteria were not satisfied, the ALJ thoroughly reviewed many of the “mild” and “moderate” limitation 22 findings of Dr. Cross. (AR 26-28). The ALJ also stated at the conclusion of this section that Plaintiff’s assessed RFC “reflects the degree of limitation the undersigned has found 23 in the ‘paragraph B’ mental functional analysis.” (AR 28). Thus, the ALJ did not ignore the moderate limitations as Plaintiff argues; rather, the ALJ explicitly stated the 24 limitations are reflected in the assessed RFC. 1 Plaintiff would like for this Court to reverse and remand so that the ALJ can 2 expressly state the weight that should be given to the “moderate limitations” assessed in 3 Dr. Cross’ report.9 There is no reason why this case needs to be remanded for this sole 4 purpose when it is clear that the ALJ considered the entirety of Dr. Cross’ report in 5 giving it persuasive weight and assessing an RFC with “no greater than simple routine

6 tasks.” See Ford v. Saul, No. 18-35794,

, at *9 (9th Cir. Feb. 20, 2020) 7 (“An ALJ’s duty to develop the record further is triggered only when there is ambiguous 8 evidence or when the record is inadequate to allow for proper evaluation of the 9 evidence.”) (quoting Mayes v. Massanari,

(9th Cir. 2001)); Stubbs- 10 Danielson v. Astrue,

(9th Cir. 2008) (“[A]n ALJ’s assessment of a 11 claimant adequately captures restrictions related to concentration, persistence, or pace 12 where the assessment is consistent with restrictions identified in the medical 13 testimony.”). Moreover, Plaintiff has not explained how any of her mental limitations 14 are sufficiently restrictive to ultimately preclude her from performing work. See, e.g., 15 Hoopai v. Astrue,

(9th Cir. 2007) (explaining the Ninth Circuit has 16 not “held mild or moderate depression to be a sufficiently severe non-exertional

17 limitation that significantly limits a claimant’s ability to do work beyond the exertional 18 limitation”); Ball v. Colvin,

, at *3 (C.D. Cal. May 15, 2015) (“As the 19 ALJ found that Plaintiff’s mental impairments were minimal, the ALJ was not required 20 to include them in Plaintiff’s RFC.”); Sisco v. Colvin,

, at *7-8 (N.D. 21

22 9 Plaintiff rather shockingly changes Dr. Cross’ assessed limitations from “moderate” to “significant” in the reply section of the Joint Stipulation. [Dkt. No. 18, pp. 10-12]. The 23 assessed limitations at issue are only referred to as “moderate” by Dr. Cross and it is disingenuous to argue that they are of any more significance than that specifically stated 24 by the examining consultant. 1 Cal. June 20, 2014) (ALJ not required to include in RFC assessment mental impairment 2 that imposed “no significant functional limitations”). Here, Dr. Cross simply assessed 3 some “moderate” limitations in deeming Plaintiff’s condition “fair.” (AR 287). See 4 Shapiro v. Berryhill,

, at *6 (D. Nev. Feb. 20, 2020) (concluding that 5 the ALJ properly translated claimant’s mental impairment into an RFC that accounted

6 for moderate limitations). 7 Furthermore, it is the role of the ALJ, and not this Court, to interpret and 8 resolve any ambiguities in the medical records. See Tommasetti,

-42 9 (“The ALJ is the final arbiter with respect to resolving ambiguities in the medical 10 evidence.”); Andrews v. Shalala,

(9th Cir. 1995) (holding that it is the 11 ALJ’s job to resolve any conflicts). See Ryan v. Comm’r of Soc. Sec.,

, 1198 12 (9th Cir. 2008) (“’Where evidence is susceptible to more than one rational 13 interpretation,’ the ALJ’s decision should be upheld.”) (citation omitted); Robbins v. 14 Soc. Sec. Admin.,

(9th Cir. 2006) (“If the evidence can support either 15 affirming or reversing the ALJ’s conclusion, we may not substitute our judgment for that 16 of the ALJ.”) There is no reason why this case needs to be remanded for the sole

17 purpose of having the ALJ expressly state how she incorporated Dr. Cross’ assessed 18 moderate limitations into the RFC. Indeed, an ALJ is not obligated to discuss “every 19 piece of evidence” when interpreting the evidence and developing the record. See 20 Howard ex rel. Wolff v. Barnhart,

(9th Cir. 2003) (citation omitted). 21 Similarly, an ALJ is also not obligated to discuss every word of a doctor’s opinion or 22 include limitations not actually assessed by the doctor. See Fox v. Berryhill,

3197215, *5 (C.D. Cal. July 27, 2017); Howard,

. 24 1 Finally, as the ALJ’s assessed RFC aligns with Dr. Cross’ opinion by limiting 2 Plaintiff to light work with no greater than simple routine tasks, any failure of the ALJ to 3 address the moderate limitations would be harmless. See Treichler v. Comm'r of Soc. 4 Sec. Admin.,

(9th Cir. 2014) (Error is harmless if “it is 5 inconsequential to the ultimate nondisability determination” or, despite the legal error,

6 “the agency's path may reasonably be discerned.”) 7 IV. CONCLUSION 8 For the reasons stated above, the decision of the Social Security Commissioner is 9 AFFIRMED, and the action is DISMISSED with prejudice. Judgment shall be entered 10 accordingly. 11 12 DATE: March 17, 2020

13 /s/ Autumn D. Spaeth 14 THE HONORABLE AUTUMN D. SPAETH United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24