Piksa v. Commissioner of Social Security

[5] UNITED STATES DISTRICT COURT [6] WESTERN DISTRICT OF WASHINGTON AT TACOMA [7] 8 NICHOLAS P., 9 Plaintiff, Case No. C23-5447-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. [13] I. INTRODUCTION [14] Plaintiff seeks review of the denial of his application for Supplemental Security Income. [15] Plaintiff contends the administrative law judge (“ALJ”) erred by: (1) failing to properly evaluate [16] Plaintiff’s testimony concerning his limitations; and (2) failing to properly evaluate Plaintiff’s [17] mental health impairments and credit them as severe at step two. (Dkt. # 7 at 1.) As discussed [18] below, the Court REVERSES the Commissioner’s final decision, and REMANDS this matter for [19] further administrative proceedings under sentence four of 42 U.S.C. § 405 (g). [20] II. BACKGROUND [21] Plaintiff was born in 1985, has an associate’s degree in cybersecurity, and previously [22] worked as a glass shop glazer and a delivery driver. AR at 19, 32, 44-45, 237, 251. Plaintiff has [23] not engaged in substantial gainful activity since November 2019. Id. at 17 . 1 On November 6, 2019, Plaintiff applied for benefits, alleging disability as of that date. 2 AR at 15. Plaintiff’s application was denied initially on November 30, 2020, and on 3 reconsideration on July 28, 2021, and Plaintiff requested a hearing. Id. After the ALJ conducted 4 a telephonic hearing on March 24, 2022, the ALJ issued a decision finding that Plaintiff was not 5 disabled and that he could perform work that existed in significant numbers in the national 6 economy. Id. at 15, 33-34 . 7 As the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is the 8 Commissioner’s final decision. AR at 1-3. Plaintiff appealed the final decision of the 9 Commissioner to this Court. (Dkt. # 1.) 10 III. LEGAL STANDARDS 11 Under 42 U.S.C. § 405 (g), this Court may set aside the Commissioner’s denial of social 12 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 13 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 14 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the 15 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 16 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 17 alters the outcome of the case.” Id. 18 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 19 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 20 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 21 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 22 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 23 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 1 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 2 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 3 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 4 IV. DISCUSSION 5 A. The ALJ Erred in Discounting Plaintiff’s Testimony 6 Plaintiff first contends the ALJ erred in discounting his testimony. (Dkt. # 7 at 3-7.) 7 Plaintiff argues the ALJ failed to provide clear and convincing reasons for rejecting his 8 testimony that he needed to alternate between sitting and standing every 15 minutes and that he 9 required the ability to stretch for 20 minutes once to four times a day. (Id.) 10 Absent affirmative evidence showing the claimant is malingering, the ALJ must provide 11 “clear and convincing” reasons for rejecting a claimant’s testimony. Burrell v. Colvin, 775 F.3d 12 1133, 1136-37 (9th Cir. 2014) (citing Molina, 674 F.3d at 1112 ). The “clear and convincing” 13 standard does not ask “whether [the Court] is convinced, but instead whether the ALJ’s rationale 14 is clear enough that it has the power to convince.” See Smartt v. Kijakazi, 53 F.4th 489 , 499 (9th 15 Cir. 2022). 16 At his hearing, Plaintiff testified he was unable to work because of chronic low back 17 pain, with radiating symptoms down his legs from his lumbar spine impairment, and due to 18 chronic fatigue and/or limited endurance that affected his functioning. AR at 54. Plaintiff 19 testified he could walk for only five minutes, or “half a block,” stand about 15 minutes before 20 needing to sit, and that he could sit one hour at a time. Id. at 56, 61 . Plaintiff testified he could 21 repeat this for four to six hours a day, three days a week, but that afterwards, his back was done 22 and that he could not “do anything else the rest of the day that’s constructive.” Id. at 62 . Plaintiff 23 testified that between one and four times a day, he took 20 minutes to stretch by sitting on a chair 1 and bending his body forward to touch his toes to ease his back pain. Id. at 57-58, 61 . Plaintiff 2 testified he relied on a cane at times depending on his pain level, and that he had one to two 3 “worse” days per month, which would require him to sit or lie down for most of the day due to 4 his back pain. Id. at 56, 58-59 . 5 In his decision, the ALJ found Plaintiff’s allegations were not sufficiently supported 6 because they were inconsistent with medical evidence in the record as well as Plaintiff’s 7 activities. AR at 21. With regard to Plaintiff’s lumbar spine condition, the ALJ determined the 8 medical evidence in the record did not establish the degree of physical limitation alleged. Id. at 9 26. The ALJ found the medical evidence demonstrated: (1) Plaintiff’s chronic back pain 10 improved with medication and medial branch blocks; (2) Plaintiff failed to follow through with 11 provider recommendations to have back surgery, suggesting his pain was not as debilitating as 12 alleged; and (3) that Plaintiff regularly ambulated with a normal gait, demonstrated full range of 13 motion of the spine and extremities, generally had full strength, sensation, and reflexes of the 14 extremities, and that his straight leg raise tests were generally negative. Id. 15 With regard to Plaintiff’s activities, the ALJ found the record suggested Plaintiff believed 16 himself capable of working despite his physical impairments. AR at 27. The ALJ found the 17 record demonstrated Plaintiff was able to obtain his associate’s degree in cybersecurity in June 18 2021 and that he applied for jobs throughout the relevant period, including a driving job. Id. The 19 ALJ also found that though Plaintiff indicated difficulties with daily functioning, the record 20 demonstrated Plaintiff was “quite active and functional.” Id. As support, the ALJ cited to: (1) 21 Plaintiff’s ability to take care of his parents’ home while they were in Washington, D.C.; (2) his 22 ability to independently manage his own self-care, including household chores, driving, [23] 1 shopping, and errands; (3) his ability to care for his grandmothers, including shopping and 2 running errands for them; and (4) his reports of being able to fish and workout. Id. 3 Based on his findings, the ALJ determined Plaintiff was capable of limited light level 4 work activity, with a sit/stand option (allowing for the ability to shift positions every 45 minutes) 5 and allowing for the use of a cane and specific postural and environmental restrictions to account 6 for his pain and physical symptoms. AR at 20, 26, 28. 7 i. Conflict with Medical Evidence 8 In discussing the medical record with respect to Plaintiff’s physical functioning, the ALJ 9 recited several of Plaintiff’s physical examination findings during the adjudicated period. First, 10 in August 2020, the ALJ noted Plaintiff indicated he was able to shift positions from sitting to 11 standing, climb on and off the examination table, and put on and take off his shoes without any 12 difficulties. AR at 22 (citing id. at 339 ). At that examination, the ALJ specified that Plaintiff was 13 found to ambulate with a normal gait without an assistive device, and that Plaintiff exhibited full 14 range of motion, strength, sensation, and reflexes of the extremities though his straight leg raise 15 tests were found to be positive. Id. (citing id. at 337, 339-40 ). 16 In December 2020, the ALJ noted that Plaintiff undertook an orthopedic consultation for 17 chronic low back pain. AR at 22 (citing id. at 378 ). Upon consultation, Plaintiff was diagnosed 18 with degenerative disc disease, spondylosis, and radiculopathy. Id. (citing id. at 378-80 ). Plaintiff 19 was recommended spinal fusion surgery at that appointment but was ultimately referred for pain 20 management and physical therapy while he considered surgery.1 Id. (citing id. at 380 ). [22] 1 Though surgery was recommended by multiple providers, Plaintiff elected physical therapy and medial 23 branch nerve blocks first in lieu of surgery considering his age and the relative success rate of surgery. See e.g., AR at 345, 415, 515, 520, 556. 1 In an annual examination in March 2021, the ALJ noted that Plaintiff continued to 2 complain of low back pain, with radiating symptoms down his legs, which he rated as a 9/10 in 3 pain severity. AR at 22-23 (citing id. at 426 ). The ALJ provided that Plaintiff reported limited 4 benefit from physical therapy, was observed to be leaning to the left due to his back discomfort, 5 and that his straight leg raise tests were returned positive. Id. at 23 (citing id. at 426, 429 ). An 6 MRI scan that same month revealed degenerative changes in his back condition that had mildly 7 progressed. Id. (citing id. at 389-90 ). 8 In May 2021, the ALJ noted that Plaintiff participated in an orthopedic consultation for 9 his back pain where he was observed to have ambulated with a normal gait and intact balance. 10 AR at 23 (citing id. at 804-05 ). The ALJ mentioned that Plaintiff was found to have a normal 11 range of motion of the spine and hips and full strength and sensation with negative straight leg 12 raise tests at this consultation. Id. The consulting doctor also recommended fusion surgery. Id. In 13 July 2021, the ALJ noted a consultative psychological examination where Plaintiff was observed 14 by the provider to have ambulated slowly with a cane. Id. at 24 (citing id. at 506 ). 15 In October 2021, the ALJ noted that at a primary care appointment, Plaintiff reported he 16 was hesitant to have back surgery, but was interested in continued injection therapy. AR at 25 17 (citing id. at 515 ). At that appointment, Plaintiff was observed to have ambulated with an 18 antalgic gait with a cane due to a walking boot on his right foot from an injury. Id. (citing id. at 19 517). In November 2021, in a follow-up primary care appointment, the ALJ referenced that 20 Plaintiff reported gaining 27 pounds from taking olanzapine for his mental health impairments 21 and from working out. Id. (citing id. at 694 ). Plaintiff was observed at that appointment to 22 ambulate with an antalgic gait but exhibited a full range of motion. Id. (citing id. at 696-97 ). In 23 December 2021, the ALJ documented, Plaintiff participated in a pain management consultation 1 where the treating provider administered lumbar medial branch blocks. Id. (citing id. at 556 ). In 2 January 2022, at a follow-up primary care appointment, Plaintiff reported a 50% temporary 3 improvement in his condition with the procedure but noted that it “wore off quickly.” Id. (citing [4] id. at 728 ). 5 On this issue, the Court finds that the ALJ erred in discounting Plaintiff’s testimony 6 based on the above-cited medical evidence in the record.2 The ALJ acknowledged the objective 7 medical findings supported a sit/stand option allowing Plaintiff the ability to change positions 8 every 45 minutes, and to keep working while doing so (AR at 20, 26), but failed to provide clear 9 and convincing evidence to rebut Plaintiff’s testimony that he required more extensive sit/stand 10 accommodations than accounted for by the ALJ in Plaintiff’s residual functional capacity 11 assessment (“RFC”). See, e.g., Brown-Hunter v. Colvin, 806 F.3d 487, 493-94 (9th Cir. 2015) 12 (ALJ failed to provide specific reasons allowing for meaningful review where “she simply stated 13 her non-credibility conclusion and then summarized the medical evidence supporting her RFC 14 determination”). 15 Despite providing a comprehensive summary of Plaintiff’s physical examination findings 16 with respect to his back condition, the ALJ failed to explain how Plaintiff’s treatment records 17 undermined his testimony regarding his inability to sit for prolonged periods of time. Though the 18 ALJ cited instances where Plaintiff was found to have ambulated with a normal gait, had full 19 range of motion of the spine and extremities, and/or instances where his straight leg raise tests [20] 2 Defendant’s response cites to a November 2020 treatment note from a psychological consultative [21] evaluation indicating Plaintiff was able to walk down a steep hill before an appointment and that he took two flights of stairs afterwards to access a parking lot without restriction in his gait or posture. (Dkt. # 14 22 at 5 (citing AR 346).) However, this reasoning does not appear in the ALJ’s decision as a basis to discount Plaintiff’s testimony. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (The Court 23 “review[s] only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely”). 1 were found to be negative (AR at 26), the record in fact demonstrates several instances of 2 positive straight leg raise tests (see e.g., id. at 79, 82, 93, 339, 354, 429). The ALJ cited 3 improvement in pain after a medial branch block procedure, but failed to note that the 4 improvement wore off quickly. Id. at 26, 728. The ALJ also failed to explain how Plaintiff’s full 5 range of motion in his spine and extremities specifically contradicted his testimony regarding his 6 inability to sit, stand, and walk for prolonged periods due to his pain. See id. at 26. Highlighting 7 or “cherry-picking” objective findings does not satisfy the ALJ’s duty to provide clear and 8 convincing evidence. See Diedrich v. Berryhill, 874 F.3d 634, 642 (9th Cir. 2017). 9 Given Plaintiff’s treatment record, the degree to which Plaintiff’s back pain improved 10 with medication and/or therapy was marginal as evidenced by his longitudinal complaints, 11 reports of lack of improvement noted by his providers, continued recommendations for spinal 12 fusion surgery, and report of only a 50% temporary improvement in his symptoms with a medial 13 branch block. See e.g., AR at 404, 415, 417, 515, 556, 728, 798. Plaintiff’s reluctance to undergo 14 a spinal fusion surgery in and of itself also fails to clearly and convincingly rebut his testimony 15 that he required more extensive sit/stand accommodations. The record evinces Plaintiff elected to 16 try other treatments, such as physical therapy and branch blocks, due to his age, the low success 17 rate of surgery, and the year-long recovery time. See id. at 345, 417, 556. 18 On this aspect of Plaintiff’s testimony, conflict with the medical evidence was not a clear 19 and convincing reason to discount his allegations. 20 ii. Activities 21 As to Plaintiff’s activities, the ALJ noted Plaintiff reported living independently and 22 managing his own activities of daily living including cleaning, cooking, laundry, shopping, and 23 running errands. AR at 27, 346. The ALJ also considered that Plaintiff attended school full-time 1 to get an associate’s degree in cybersecurity during the adjudicated period and applied for jobs. 2 Id. at 48-49, 287, 506, 728-29, 788. The ALJ noted that Plaintiff’s daily routine included waking 3 up, taking a shower, getting on the computer, cooking dinner, and going to sleep, and that 4 Plaintiff acknowledged that he would “like to have work in [his] schedule.” Id. at 568. The ALJ 5 acknowledged Plaintiff cared for his grandmother, which required him to shop and run errands. 6 Id. at 27, 304, 307, 563. 7 On this aspect, the ALJ’s decision also fails to adequately explain how Plaintiff’s 8 activities were at odds with his testimony. An ALJ may discount a claimant’s testimony based on 9 daily activities that contradict his testimony. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 10 2007) (activities may undermine credibility where they (1) contradict the claimant’s testimony or 11 (2) “meet the threshold for transferable work skills”). Nevertheless, “[o]nly if the level of activity 12 were inconsistent with claimant’s claimed limitations would these activities have any bearing on 13 claimant’s credibility.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 14 None of the activities cited by the ALJ indicates whether any of the activities required 15 Plaintiff to sit for more than one hour without the ability to stand and stretch for 20 minutes. 16 Plaintiff’s ability to obtain an associate’s degree does not rebut his claimed limitations as there is 17 no indication he was sitting or standing for prolonged periods to obtain his degree, which 18 Plaintiff reported he acquired slowly due to his mental health impairments and accommodations. 19 See AR at 300, 563, 938. Plaintiff’s search for employment that he ultimately did not acquire 20 likewise fails to reflect on the extent of his claimed limitations. 21 Plaintiff’s activities of daily living are also not inconsistent with Plaintiff’s testimony as 22 one does not need to be “utterly incapacitated” to be disabled. See Vertigan v. Halter, 260 F.3d 23 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted that the mere fact that a plaintiff 1 has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking 2 for exercise, does not in any way detract from her credibility as to her overall disability.”). 3 Though the record demonstrates Plaintiff was able to perform cooking, self-care tasks, chores, 4 and errands independently, it is clear Plaintiff’s back impairment restricted his ability to perform 5 such tasks due to pain and his inability to sit for more than 30 minutes. See AR at 261-264. 6 Plaintiff’s ability to care for his parents’ home only required him to undertake simple chores, 7 such as getting the mail, taking out garbage, and cleaning up after himself. See id. at 46-47 . And 8 despite Plaintiff’s ability to take his grandmothers shopping, in the same report, Plaintiff also 9 reported difficulty standing and walking for prolong periods due to his back pain and indicated 10 he only shopped once a week for approximately ten minutes for his grandmothers. See id. at 303, 11 305-06. 12 Finally, Plaintiff reported hobbies such as working out and fishing, but the cited report by 13 the ALJ fails to note whether Plaintiff was actively engaged in such activities when he reported 14 them as hobbies (see AR at 568), and in any case, there is nothing in the record indicating these 15 activities required Plaintiff to sit for more than one hour without the ability to stand and stretch 16 for 20 minutes. See id. at 265. Because none of the ALJ’s cited activities are incompatible with 17 Plaintiff’s testimony concerning his inability to sit and stand for a prolonged period, conflict with 18 Plaintiff’s daily activities was also not a clear and convincing reason to discount his testimony. 19 In sum, the ALJ’s rejection of Plaintiff’s testimony constitutes harmful error because it 20 undercuts the ALJ’s findings that he could perform the occupations identified at step five. See 21 AR at 33-34. As noted by Plaintiff, the vocational expert testified all the occupations identified 22 in response to the ALJ’s hypothetical questions would be eliminated if the individual required 23 the accommodation to stand and stretch 20 minutes after an hour of sitting. See id. at 71-72. 1 Because the ALJ failed to provide sufficient reasons to discount Plaintiff’s testimony, his 2 testimony must be reassessed on remand. 3 B. The ALJ Did Not Err in Evaluating the Severity of Plaintiff’s Mental Health Conditions [4] Next, Plaintiff argues the ALJ erred in evaluating his obsessive-compulsive disorder and [5] psychosis. (Dkt. # 7 at 7-16.) Plaintiff notes his OCD and psychosis were documented [6] throughout the record and argues the ALJ erred in: (1) rejecting medical source opinions of Drs. [7] David Widlan, Alyssa Ruddell, and Dana Harmon about these impairments; (2) failing to include [8] these conditions as severe impairments at step two; and (3) failing to account for resulting [9] limitations from these impairments at step three and in Plaintiff’s RFC. (Id. at 13-16.) Defendant [10] responds substantial evidence supports the ALJ’s consideration of Plaintiff’s mental health [11] symptoms, and that he did not err because the ALJ considered all the limitations posed by [12] Plaintiff’s mental health impairments. (Dkt. # 14 at 6-10.) [13] First, with respect to Plaintiff’s argument as to the ALJ’s evaluation of the medical [14] opinion evidence, Plaintiff’s brief contention that the ALJ failed to establish the opinions of Drs. [15] Widlan, Ruddell, and Harmon were not persuasive is conclusory. Plaintiff fails to meaningfully [16] engage with the ALJ’s reasoning as to these providers in any specific manner. (See dkt. # 7 at [17] 15.) Plaintiff’s cursory argument without elaboration, explanation, or citation to supporting [18] evidence is insufficient to establish the ALJ harmfully erred on this basis, and thus, is waived. [19] See Hurn v. Saul, 798 F. App’x 976 , 979 (9th Cir. 2019) (finding non-specific arguments [20] waived); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155 , 1161 n.2 (9th Cir. 2008) [21] (finding claimant waives issue by failing to argue it “with any specificity”). [22] As to the remainder of Plaintiff’s step-two argument, at step two an ALJ must determine [23] whether a claimant has at least one severe medically determinable impairment or combination of 1 impairments. 20 C.F.R. § 416.920 (a)(4)(ii). A medically determinable impairment “must be 2 established by objective medical evidence from an acceptable medical source.” 20 C.F.R. 3 § 416.921. Impairments are severe if they “significantly limit” a claimant’s “physical or mental 4 ability to do basic work activities.” 20 C.F.R. § 416.922 (a). 5 “An impairment or combination of impairments can be found ‘not severe’ only if the 6 evidence establishes a slight abnormality that has ‘no more than a minimal effect on an 7 individual’s ability to work.’” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (quoting 8 Social Security Ruling (“SSR”) 85-28). An ALJ is also required to consider the “combined 9 effect” of an individual’s impairments in considering severity. Id. The step-two inquiry is 10 “merely a threshold determination meant to screen out weak claims.” Buck v. Berryhill, 869 F.3d 11 1040, 1048 (9th Cir. 2017) (citing Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987)). 12 In this case, the ALJ found Plaintiff’s severe impairments included lumbar degenerative 13 disc disease, lumbar spondylolysis, generalized anxiety disorder, and somatic symptom disorder. 14 AR at 17. The ALJ acknowledged Plaintiff exhibited several mental health symptoms resulting 15 in varying mental health diagnoses in the record but noted that he “considered all of [Plaintiff’s] 16 symptoms regardless of individual diagnosis.” See id. at 17 n. 1. Relevantly, the ALJ’s decision 17 identified Plaintiff’s auditory hallucinations as a reported mental health symptom, noted Plaintiff 18 was twice admitted to inpatient care for auditory hallucinations on self-referral, but found his 19 auditory hallucinations improved with treatment while on olanzapine. Id. at 21, 24 (citing id. at 20 819-20, 877). The ALJ also considered Plaintiff’s skin-picking, as related to Plaintiff’s OCD 21 and/or anxiety, his social embarrassment about it, and that this symptom improved with 22 treatment while on escitalopram. Id. at 24-25. [23] 1 On this issue, the ALJ provided substantial evidence in support of his determination that 2 Plaintiff was able to sustain work activity despite his mental health symptoms. This includes, 3 inter alia, reference to medical records indicating Plaintiff’s continued improvement with both 4 mental health impairments as being managed effectively since July 2021 with treatment. See AR 5 at 520, 525, 530, 563, 699, 710, 733, 762, 787. The ALJ also cited to evidence in the record 6 demonstrating Plaintiff remained consistently engaged with his medical and mental health 7 professionals, which the ALJ found demonstrated Plaintiff could tolerate some degree of social 8 interaction in the workplace. See id. at 339, 346, 506, 517, 522, 526, 697, 713, 73, 790, 820. 9 Though Plaintiff proposes an alternative interpretation of the evidence relating to these specific 10 mental health impairments, the Court finds the ALJ’s interpretation reasonable considering the 11 record. See Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (finding where the evidence 12 is susceptible to more than one rational interpretation, the Commissioner’s interpretation must be 13 upheld). Moreover, despite Plaintiff’s argument the ALJ ignored his OCD and/or psychosis at 14 step three, the ALJ clearly acknowledged Plaintiff’s mental health symptoms with regard to his 15 memory, understanding, ability to complete tasks, ability to interact with others, ability to 16 concentrate, and ability to adapt and manage himself in evaluating the Paragraph B criteria based 17 on Plaintiff’s presentation to his mental health providers. See AR at 19-20. 18 Finally, in assessing the RFC, the ALJ must consider limitations and restrictions imposed 19 by all of an individual’s impairments, even those that are not ‘severe.’” SSR 96-8p, 1996 WL 20 374184, at *5 (S.S.A. July 2, 1996). “The RFC therefore should be exactly the same regardless 21 of whether certain impairments are considered ‘severe’ or not.” Buck, 869 F.3d at 1049 22 (emphasis in original). Here, it appears any error at step two was ultimately harmless because the 23 ALJ accounted for Plaintiff’s mental health limitations in the assessed RFC by restricting his 1 work activity to limited public interaction to account for his difficulties with social functioning 2 due to his mental health impairments. See AR at 20, 24, 27. Plaintiff fails to demonstrate the ALJ 3 should have included additional limitations in the RFC assessment with regard to his OCD and 4 auditory hallucinations, and thus, fails to show the ALJ committed harmful error by omitting 5 them as serious impairments at step two. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) 6 (“The decision reflects that the ALJ considered any limitations posed by the bursitis at Step 4. As 7 such, any error that the ALJ made in failing to include the bursitis at Step 2 was harmless.”). 8 V. CONCLUSION 9 For the foregoing reasons, the Commissioner’s final decision is REVERSED, and this 10 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. 11 § 405(g). On remand, the ALJ should reconsider Plaintiff’s testimony, reassess his residual 12 functional capacity, make a new step five finding, and reevaluate any other portion of the 13 decision as appropriate and necessary. 14 Dated this 5th day of January, 2024. [15] A 16 MICHELLE L. PETERSON United States Magistrate Judge