Moran v. Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 SAMANTHA M.,1 Case No.: 23-CV-2182 W (LR) 12 Plaintiff, ORDER ADOPTING R&R [DOC. 17] 13 v. AND OVERRULING PLAINTIFF’S OBJECTIONS [DOC. 18] 14 LEE DUDEK, Acting Commissioner of Social Security, [15] Defendant. [18] 19 Pending before the Court is Plaintiff’s objection to Magistrate Judge Lupe 20 Rodriguez, Jr.’s Report and Recommendation (R&R) affirming the Commissioner of the 21 Social Security Administration’s (SSA) denial of supplemental security benefits. See 22 (R&R [Doc. 17].) The Court referred all matters arising in this social security appeal to 23 United States Magistrate Judge Lupe Rodriguez, Jr. for Report and Recommendation 24 under Section 636(b)(1)(B) of Title 28 of the United States Code and Civil Local Rule 25 72.1. See 28 U.S.C. § 636 (b)(1)(B); CivLR 72.1. [27] 1 To protect Plaintiff’s privacy, this Order uses only the first name and initial of the last name of the [28] 1 On February 18, 2025, Magistrate Judge Rodriguez, Jr. issued a thorough and well2 reasoned R&R affirming the Commissioner’s decisions [Doc. 17]. Plaintiff filed 3 Objections to the R&R on February 26, 2025. (Obj. [Doc. 18].) Defendant has opposed. 4 (Opp’n [Doc. 19].) 5 The Court has made a review and determination in accordance with the 6 requirements of 28 U.S.C. § 636 and applicable case law. For the reasons explained 7 below, the Court OVERRULES Plaintiff’s objections and ADOPTS Judge Rodriguez, 8 Jr.’s R&R in its entirety. [9] 10 I. BACKGROUND 11 On July 1, 2021, Plaintiff filed an application for a period of disability and 12 disability insurance benefits, alleging disability beginning October 20, 2019. (AR2 [Doc. 13 9] at 187–91.) After Plaintiff’s application was denied initially and upon reconsideration, 14 she filed a written request for a hearing before an Administrative Law Judge (“ALJ”). 15 (Id. at 127–28.) The hearing was on November 16, 2022, with Plaintiff represented by 16 counsel. (Id. at 17.) On February 15, 2023, the ALJ found Plaintiff was not disabled 17 since her application filing date. (Id. at 33.) Plaintiff then requested the Appeals Counsel 18 to review the ALJ’s determinations, but that request was denied. (Id. at 1–3, 5.) 19 Plaintiff then filed this suit in the Southern District of California seeking judicial 20 review of the Commissioner’s findings [Doc. 1]. Specifically, Plaintiff presented three 21 issues: whether the ALJ (1) failed to find Plaintiff’s major depressive disorder and 22 anxiety disorder as severe impairments; (2) improperly evaluated Plaintiff’s migraine 23 headaches; and (3) incorrectly assessed Plaintiff’s physical residual functional capacity 24 (“RFC”). (Joint Mtn. Jud. Review [Doc. 16] at 7:19–22.) If erroneous, Plaintiff 25 requested that the Court reverse and remand for calculation of benefits. (Id.) [28] 1 Magistrate Judge Rodriguez, Jr. issued an R&R recommending that the 2 Commissioner’s decision be affirmed, and set February 26, 2025, as the deadline for 3 Plaintiff to file an objection. (R&R at 29:1–12.) Plaintiff filed an objection to the R&R 4 and Defendant has opposed. [5] 6 II. LEGAL STANDARD 7 The duties of the district court in connection with a magistrate judge’s report and 8 recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and [9] 28 U.S.C. § 636 (b)(1). Where the parties object to a R&R, “[a] judge of the [district] 10 court shall make a de novo determination of those portions of the [R&R] to which 11 objection is made.” 28 U.S.C. § 636 (b)(1); see Thomas v. Arn, 474 U.S. 140 , 149–50 12 (1985). A district judge may “accept, reject, or modify, in whole or in part, the findings 13 or recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1); see also 14 Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006). [15] 16 III. ANALYSIS 17 Plaintiff objects to the Magistrate Judge’s R&R on three grounds. (Obj. [Doc. 18 17].) First, she argues that the ALJ failed to find that Plaintiff’s major depressive 19 disorder and anxiety disorder were severe impairments at Step Two. (Id. at 1:23–27.) 20 Second, she argues that substantial evidence does not support the ALJ’s evaluation of 21 Plaintiff’s migraine headaches. (Id. at 4:14–16.) Third, Plaintiff argues that the RFC is 22 not supported by substantial evidence. (Id. at 8–9.) 23 /// 24 /// 25 /// 26 /// 27 /// [28] 1 A. The ALJ’s Evaluation of Plaintiff’s Mental Impairments Is Supported by 2 Substantial Evidence 3 i. The ALJ’s determination of Plaintiff’s Major Depressive Disorder and 4 Anxiety Disorder 5 Plaintiff objects to the ALJ’s determination that her depression and anxiety were 6 non-severe impairments. (Id. at 11–12.) At Step Two of the sequential evaluation, the 7 SSA considers the medical severity of the claimant’s impairment. 20 C.F.R. 8 § 404.1520(a)(4)(ii). To establish that a medically determinable impairment is “severe,” 9 the claimant must show that the impairment poses a significant limitation on their 10 physical or mental ability to perform basic work activities. Id. at § 404.1520(c). “Basic 11 work activities” include a variety of tasks related to work routines, such as physical 12 functions (walking, standing, sitting) and mental functions (understanding, carrying out 13 tasks, communication). Id. at § 404.1522(b). 14 Plaintiff asserts that the ALJ erred in finding that her major depressive disorder and 15 anxiety were not severe impairments because “the ALJ failed to explain how someone 16 with a diagnosis of major depression does not have significant limitations in work related 17 activities.” (Id. at 3:11–16.) In support, Plaintiff cites a diagnosis by consultative 18 examiner J. Durr, Ph.D. finding that she had a “mild inability to maintain consistency and 19 pace throughout the day and follow the normal rules of the workplace, and was at risk for 20 calling in sick, not showing up, or needing to leave early.” (Id. at 3:8–12.) 21 However, as the Magistrate Judge correctly stated, the ALJ came to that conclusion 22 after identifying the major depressive disorder and anxiety disorder as medically 23 determinable impairments and considering their impact on each of the four functional 24 areas outlined in the disability regulations. (R&R at 14–15.) For example, the 25 Magistrate Judge pointed out: 26 • In the first functional area of understanding, remembering, or applying 27 information, the ALJ found that Plaintiff had only a mild limitation. (AR at 21– 28 22.) This determination was based on the Plaintiff’s opinions, her ability to recall 1 objects, notes from doctors, and results from the Wechsler Adult Intelligence Scale 2 (4th Edition). (R&R at 14:13–21.) 3 • In the second functional area, the ALJ found she had mild limitations interacting 4 with others, referencing doctor opinions that she was cooperative and made good 5 eye contact; Plaintiff’s testimony that she spent time with family and friends 6 regularly; and another doctor’s findings that she was able to answer questions 7 about hypothetical social situations appropriately with “social judgment and 8 knowledge of norms.” (Id. at 14:22–28); (AR at 21–22.) 9 • In the third functional area, the ALJ found she had mild limitations in 10 concentrating persisting or maintaining pace. (R&R at 15.) The ALJ considered 11 Plaintiff’s own testimony that she could pay attention for 15 to 20 minutes with 12 reports from doctors that she did not have gross abnormalities in attention and 13 concentration. (Id. at 15:1–9); (AR at 21–22.) 14 • In the fourth functional area, the ALJ found she had only mild limitations adapting 15 or managing herself. (R&R at 15:10–11.) The ALJ noted that Plaintiff had 16 reported no difficulties performing personal care activities and had reported her 17 ability to perform household chores. (Id. at 15:11–13.) Additionally, the ALJ 18 noted that Plaintiff was engaged in hobbies, did well in her online college courses, 19 still had her driver’s license, and was capable of driving herself to medical 20 appointments. (Id. at 15:14–18); (AR at 22–23.) 21 The Magistrate Judge found that despite the diagnosis and an opinion that she had 22 mild functional limitations, Plaintiff failed to “offer specific evidence of functional 23 limitations directly attributable to her major depression disorder or generalized anxiety 24 disorder that the ALJ failed to address.” (R&R at 16:13–17.) 25 As the Ninth Circuit has explained, “[t]he . . . existence of an impairment is 26 insufficient proof of disability . . . . [and] [a] claimant bears the burden of proving that an 27 impairment is disabling.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) 28 (quotations and internal citations omitted). See also Bay M. for Anthony M. v. Saul, No. 1 18-CV-01015-W (JLB), 2019 WL 3562214 , at *8 (S.D. Cal. Aug. 6, 2019) (finding that a 2 diagnosis of major depressive disorder—without explaining functional limitations is not 3 sufficient to find inability to work). 4 Here, the record demonstrates that the ALJ considered both Dr. Durr’s opinion 5 and the results of the functional areas before concluding that Plaintiff suffered only mild 6 limitations. (AR at 24–31.) However, the Magistrate Judge correctly pointed out that 7 “although Plaintiff cites Dr. Durr’s opinion indicating mild functional limitations, 8 Plaintiff does not offer specific evidence of functional limitations directly attributable to 9 her major depressive disorder or generalized anxiety disorder that the ALJ failed to 10 address.” (R&R at 16:13–17.) The Court agrees with the Magistrate Judge that “[i]n the 11 absence of any functional limitations directly related to Plaintiff’s major depressive 12 disorder and/or unspecified anxiety disorder that the ALJ failed to consider, the Court 13 cannot find error.” (R&R at 16: 20–22.) Therefore, Plaintiff’s objection is overruled. [14] 15 ii. The Magistrate Judge did not err by not including the mild limitations in 16 the RFC finding 17 Although the ALJ and the Magistrate Judge found Plaintiff’s major depressive 18 disorder and anxiety disorder limitations were mild, she argues the ALJ’s determination 19 not to include them in the RFC was unsupported by substantial evidence because “non20 severe mental impairments causing even mild limitations in understanding, remembering, 21 or applying information and concentrating, persisting, or maintaining pace can impact an 22 individual’s ability to perform reasoning . . . jobs . . . .” (Obj. at 4:4–8.) Plaintiff asserts 23 that the ALJ failed to include these mild limitations in the RFC finding, and by doing so, 24 failed to consider the impact of those limitations on the representative jobs the ALJ 25 identified. (Id. at 4:3–9.) 26 However, the Magistrate Judge pointed out that “[w]here an ALJ discusses mental 27 impairments . . . and determines that they do not cause more than a ‘mild limitation,’ the 28 RFC need not include additional analysis related to these impairments.” (R&R at 26:7– 1 21) (citing Woods v. Kijakazi, 32 F.4th 785 , 794 (9th Cir. 2022)). Here, the ALJ 2 considered medical opinions and the results on the functional areas before determining 3 that Plaintiff’s major depressive disorder and anxiety disorder posed only mild 4 limitations. (AR 23.) Therefore, the Magistrate Judge correctly found that the ALJ was 5 not required to discuss these mental impairments further in the final RFC. (R&R at 27.) [6] 7 B. Substantial Evidence Supports the ALJ’s Evaluation of Plaintiff’s Headaches 8 i. The ALJ did not commit error by not analyzing the headaches under Listing 9 11.02 10 Plaintiff also objects to the Magistrate Judge’s R&R on the grounds that while the 11 ALJ found Plaintiff’s migraine to be a severe impairment, the ALJ did not refer to or cite 12 Listing 11.02 and SSR 19-4p. (Obj. at 5:15–18.) Although the ALJ did not discuss 13 Listing 11.02 in his decision, the Magistrate Judge correctly pointed out that the ALJ 14 considered whether Plaintiff met the requirements of Listing 11.04 (vascular insult to the 15 brain). (R&R at 20:14–21.) The ALJ then found that Plaintiff failed to present evidence 16 to satisfy Listing 11.04. 17 Although Plaintiff argues that the ALJ should have analyzed Listing 11.02, the 18 Magistrate Judge pointed out the “ALJ is not required to discuss the combined effects of 19 a claimant’s impairments or compare them to any listing in an equivalency determination 20 unless the claimant presents evidence in an effort to establish equivalence.” Burch v. 21 Barnhart, 400 F.3d 676, 684 (9th Cir. 2005). See also Ford v. Saul, 950 F.3d 1141 , (9th 22 Cir. 2020) (“[an] ALJ [does] not have a duty to discuss medical equivalency sua sponte . . 23 . .”). Here, Plaintiff did not raise the issue or present evidence of equivalency during the 24 administrative process. Therefore, the Magistrate Judge correctly found that the ALJ did 25 not err. 26 /// 27 /// [28] 1 C. The Magistrate Judge Correctly Found the RFC was supported by substantial evidence [2] 3 i. The RFC is supported by substantial evidence 4 Plaintiff also argues that the ALJ’s RFC assessment was not supported by 5 substantial evidence. (Obj. at 8:22–23.) Plaintiff asserts that the Magistrate Judge erred 6 because the ALJ lacked sufficient opinion evidence in the record and should have ordered 7 a consultative exam. “The ALJ in a social security case has an independent duty to fully 8 and fairly develop the record and to assure the claimant’s interests are protected.” 9 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). Further, the ALJ has a duty 10 “to investigate the facts and develop the arguments both for and against granting 11 benefits.” Sims v. Apfel, 530 U.S. 103, 120 (2000). 12 However, the Magistrate Judge correctly stated that, although an ALJ has an 13 independent duty to develop the record, the duty is only triggered when the evidence is 14 ambiguous or the record is inadequate. (R&R at 27:12–21) (citing Mayes v. Massanari, [15] 276 F.3d 453 , 459–60 (9th Cir. 2001)); see also Tonapetyan, 276 F.3d at 1150 ; Souzan H. 16 v. O’Malley, No. 3:23-CV-00031-VET, 2024 WL 4307199 , at *5 (S.D. Cal. Sept. 26, 17 2024) (citations omitted) (“[a]mbiguous evidence, or the ALJ’s finding own finding that 18 the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s 19 duty to conduct an appropriate inquiry.”). 20 Plaintiff has not pointed to ambiguous evidence that would trigger the ALJ’s duty 21 to further develop the record. Additionally, although Plaintiff argues that the record lacks 22 sufficient opinion evidence, the Magistrate Judge pointed out this argument “ignores the 23 ALJ’s unequivocal references to evidence from treating and examining physicians,” such 24 as Dr. Joseph Behymer (treating physician), James Lamar (an examining physician), and 25 Dr. Natacha Akshoomoff (treating physician). (R&R at 27:9–21); (AR 27–28.) 26 The Magistrate Judge also noted that “[t]he ALJ’s RFC determination contains 27 clear references to medical evidence supporting limitations . . . . summarizes the opinion 28 of DDS medical consultant Dr. Mazuryk, which the ALJ found persuasive and 1 incorporated into the RFC.” (R&R at 27:22–25.) The Magistrate Judge found that the 2 ALJ’s findings were supported by other medical evidence in the record. (R&R at 28:4– 3 21.) Therefore, the Magistrate Judge was correct to find that the ALJ’s findings were 4 supported by substantial evidence. [5] 6 ii. The ALJ did not err by not addressing the average length of Plaintiff’s 7 migraines and the methods Plaintiff used to alleviate them 8 Plaintiff also asserts that the Magistrate Judge did not address her argument that 9 the ALJ failed to properly address the average length of each migraine or the methods she 10 used to alleviate the pain and symptoms. (Obj. at 7:1–2.) Plaintiff described suffering 11 whiplash injuries and a head injury that caused her to suffer long headaches, light 12 sensitivity, and feelings of pressure radiating through her skull. (Id. at 7:4–10.) Plaintiff 13 also describes symptoms including photophobia, visual disturbances, nausea, agitation, 14 light-headedness, speech difficulty, and decreased concentration. (Id. at 7:24–25.) 15 Plaintiff argues that failing to address this issue is not harmless error because if the ALJ 16 had considered how she alleviated her symptoms, he might have found that “Plaintiff 17 may have been off-task in excess of the percentage of the workday that employers 18 typically allowed.” (Id. at 8:12–18.) 19 However, as defendants point out, that issue pertains to whether the ALJ’s RFC 20 assessment is supported by substantial evidence. (Opp’n at 5:2–7.) The Magistrate 21 Judge found the RFC—as explained above—was supported by substantial evidence. 22 (R&R at 27.) Specifically, the Magistrate Judge pointed out that the ALJ made 23 “unequivocal references to evidence from treating and examining physicians” and 24 contained “clear references to medical evidence supporting limitations based on 25 Plaintiff’s physical symptoms.” (Id.) Accordingly, the Court agrees that the Magistrate 26 Judge did not err because the RFC was supported by substantial evidence. 27 /// 28 /// 1 |TV. CONCLUSION 2 The Court OVERRULES Plaintiff's objections and ADOPTS Magistrate Judge 3 || Lupe Rodriguez, Jr.’s R&R in its entirety. 4 || IT IS SO ORDERED. 5 Dated: April 2, 2025 \ 6 pe InLor 7 Hn. 7 omas J. Whelan g Unted States District Judge