Carpio v. Saul

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 CYNTHIA F. CARPIO, Case No.: 20-CV-423-WVG 12 Plaintiff, ORDER ON PLAINTIFF’S MOTION 13 v. FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS MOTION 14 ANDREW SAUL, COMMISSIONER OF FOR SUMMARY JUDGMENT SOCIAL SECURITY, [15] Defendant. [18] 19 I. INTRODUCTION 20 On July 26, 2016, Cynthia F. Carpio (“Plaintiff”) applied for disability benefits 21 pursuant to the Social Security Act. (Administrative Record “AR” 45.) Andrew Saul, 22 Commissioner of Social Security, (“Commissioner” or “Defendant”) twice denied 23 Plaintiff’s application, most recently on February 8, 2017. (AR 157-161.) On January 9, 24 2020, the Commissioner’s Office of Appellate Operations confirmed and finalized the 25 Commissioner’s decision. (AR 1-7.) Having exhausted her administrative remedies, 26 Plaintiff initiated this litigation. Now before the Court are Plaintiff and Defendant’s 27 (“Parties”) cross-motions for summary judgment. (Doc. Nos. 14; 17.) For the reasons 28 below, the Court DENIES Plaintiff’s summary judgment motion and GRANTS 1 Defendant’s summary judgment motion. 2 II. PROCEDURAL HISTORY 3 On July 26, 2016, Plaintiff filed an application for disability benefits pursuant to the 4 Social Security Act, alleging she could no longer work due to her disabling condition. (AR 5 45; 227-235.) The Commissioner twice denied Plaintiff’s application, initially on 6 September 19, 2016, and upon reconsideration on February 8, 2017. (AR 151-154; 1577 161.) On March 29, 2017, Plaintiff requested a de novo administrative hearing on her 8 benefits claim. (AR 162.) On October 19, 2018, the Commissioner granted Plaintiff’s 9 request and designated Michael B. Richardson as the presiding administrative law judge 10 (“ALJ Richardson”). (AR 180-202.) On February 7, 2019, ALJ Richardson convened an 11 oral hearing on Plaintiff’s matter, for which Plaintiff, her attorneys, and John J. Komar, a 12 neutral vocational expert, appeared. (AR 80-119.) 13 On February 21, 2019, ALJ Richardson issued his Notice of Decision, which was 14 unfavorable to Plaintiff. (AR 45-60.) On January 9, 2020, the Commissioner’s Office of 15 Appellate Operations issued its Notice of Appeals Council Action, denying Plaintiff’s 16 request for review and finalizing ALJ Richardson’s decision. (AR 1-7.) In doing so, the 17 Commissioner explained it examined the additional evidence Plaintiff submitted after her 18 administrative hearing, namely medical records from Imperial County Behavioral Health 19 from January 2, 2019 through February 20, 2019 and Clinicas de Salud Del Pueblo20 Brawlery from March 24, 2019 through July 12, 2019. (AR 2.) The Commissioner found 21 the supplemental documentation irrelevant because it “d[id] not relate to the period at 22 issue.” (Id.) On such basis, the Commissioner determined “the reasons do not provide a 23 basis for changing the Administrative Law Judge’s decision” and thus confirmed the 24 Commissioner’s decision. (AR 1.) This litigation resulted. 25 On March 5, 2020, Plaintiff filed a complaint seeking judicial review of the 26 Commissioner’s denial of disability benefits. (Doc. No. 1.) On November 20, 2020, 27 Plaintiff filed a motion for summary judgment. (Doc. No. 14.) On February 25, 2021, the 28 Commissioner filed a cross-motion for summary judgment. (Doc. No. 17.) On March 24, 1 2021, Plaintiff filed a reply in support of her motion for summary judgment. (Doc. No. 18.) 2 The Parties’ respective submissions are ripe for this Court’s adjudication. 3 III. FACTUAL BACKGROUND 4 a. Plaintiff’s Medical Condition and History 5 Plaintiff is 43 years old and alleges she is unable to work due to her disabling 6 condition consisting of chronic back pain, reading and writing difficulties, being a slow 7 learner, and depression. (AR 120; 483; 487). Plaintiff began working in 1998 at a daycare. 8 (AR 487.) Thereafter, between 2002 and 2012, Plaintiff worked intermittently as an in9 home care giver to her grandmother. (Id.) In that role, Plaintiff cooked for, bathed, and 10 assisted her grandmother with moving in and out of bed and walking. (Id.) Plaintiff also 11 helped maintain her grandmother’s household by cleaning, laundering clothing, and 12 shopping for her grandmother. (Id.) During her administrative hearing, Plaintiff testified 13 she does not believe she is able to perform any of the functions of her prior work due to 14 chronic back and leg pain. (AR 94; 99-101.) Plaintiff has not worked in any capacity since 15 ceasing care to her grandmother. 16 b. Plaintiff’s Psychological Evaluations1 17 i. Dr. Colonna’s Evaluation 18 On August 29, 2016, clinical psychologist, Dr. Rosa Colonna, evaluated Plaintiff’s 19 mental health and made findings that were largely unremarkable. (AR 486-490.) Generally, 20 Dr. Colonna observed Plaintiff was “adequately dressed and groomed and not 21 malodorous,” with a “normal” posture and gait, and a “flat” affect. (AR 486.) Dr. Colonna 22 also noted Plaintiff’s medical history was “significant for depression.” (AR 487.) During 23 her appointment, Plaintiff reported to Dr. Colonna “she takes medication for depression 24 and her back, which are both helpful to her.” (Id.) Plaintiff also disclosed she suffers from [26] 1 Plaintiff does not contest ALJ Richardson’s assessment of her physical Residual 27 Functional Capacity (“RFC”). (Doc. No. 14, 12:26.) Accordingly, for purposes of this Order, the Court concerns itself only with ALJ Richardson’s findings as to Plaintiff’s [28] 1 a history abusing drugs including methamphetamine and that she relapsed in January 2016. 2 (AR 487.) 3 Dr. Colonna also surveyed Plaintiff’s current level of functioning, reporting Plaintiff 4 is financially dependent upon welfare and “able to dress, bathe, shop, and do household 5 chores.” (AR 488.) Plaintiff further shared “she takes public transportation” and “mainly 6 will stay at home, clean, watch television, and cook.” (Id.) As to Plaintiff’s attitude and 7 behavior, Dr. Colonna opined Plaintiff is “superficially pleasant” with a “normal” response 8 time and work pace. (Id.) Dr. Colonna additionally observed Plaintiff “is oriented to person, 9 time, place, and purpose of the examination,” has “clear” speech, and organizes her 10 thoughts in a “linear manner.” (Id.) Further, Plaintiff’s “psychomotor slowing [was] not 11 evident” and her “current intellectual functioning is in the borderline range.” (Id.) Dr. 12 Colonna characterized Plaintiff’s mood as “dysthymic,” her affect as “constricted,” and 13 that Plaintiff did not exhibit delusions, hallucinations, bizarreness, confusion, or any 14 psychotic indicators. (Id.) 15 During her assessment of Plaintiff, Dr. Colonna noted some moderate 16 diminishments, namely in Plaintiff’s memory and her attention and concentration span. 17 (AR 488.) Dr. Colonna added Plaintiff’s “fund of knowledge is poor” and placed Plaintiff’s 18 reading skills at a fifth-grade level and her spelling and arithmetic skills at a third-grade 19 level. (AR 488-489.) Concurrently, Dr. Colonna observed Plaintiff’s “insight and judgment 20 are grossly age appropriate” and Plaintiff “was able to respond appropriately to imaginary 21 situations requiring social judgment and knowledge of the norms.” (Id.) Ultimately, Dr. 22 Colonna found Plaintiff’s “overall cognitive ability falls within the borderline range.” (Id.) 23 Dr. Colonna elaborated Plaintiff “would be able to understand, remember, and carry out 24 short, simplistic instructions without difficulty,” “presents with a moderate inability to 25 understand, remember, and carry out detailed instructions,” and “would be able to make 26 simplistic work-related decisions without special supervision.” (Id.) Finally, Dr. Colonna 27 determined Plaintiff “is essentially socially appropriate” with a “mild inability” to interact 28 with others. (AR 490.) Dr. Colonna recommended Plaintiff adhere to a sober lifestyle, 1 comply with her medications, and undergo psychotherapy. (Id.) 2 ii. Dr. Adamo’s Evaluation 3 On September 13, 2016, Dr. Evelyn F. Adamo evaluated Plaintiff’s mental health 4 by reviewing medical and non-medical evidence in Plaintiff’s records and considering 5 Plaintiff’s own representations. (AR 125.) Dr. Adamo found Plaintiff suffered from 6 borderline intellectual functioning, substance addiction, and personality and affective 7 disorders. (AR 126.) In so opining, Dr. Adamo noted she could not substantiate Plaintiff’s 8 statements about her own limitations through any objective medical evidence. (AR 127.) 9 Dr. Adamo added Plaintiff’s assertions regarding her symptoms were only “partially 10 consistent” with medical and non-medical evidence in Plaintiff’s file. (Id.) Dr. Adamo then 11 delineated the nature of Plaintiff’s limitations, principally finding Plaintiff was “not 12 significantly” limited in her ability to: 13 • Remember locations and work-like procedures 14 • Understand, remember, and carry out very short and simple instructions 15 • Perform activities within a schedule, maintain regular attendance, and be 16 punctual within customary tolerances 17 • Sustain an ordinary routine without special supervision [18] • Make simple work-related decisions [19] • Ask simple questions or request assistance [20] • Get along with coworkers or peers without distracting them or exhibiting [21] behavioral extremes [22] • Maintain socially appropriate behavior and to adhere to basic standards of [23] neatness and cleanliness, elaborating Plaintiff “is able to interact with others in a [24] workplace on a brief, superficial level” [25] • Be aware of normal hazards and take appropriate precautions [26] • Travel to unfamiliar places or use public transportation. (AR 128-130.) [27] / / / [28] 1 Concurrently, Dr. Adamo found Plaintiff was “moderately limited” in her ability to: 2 • Understand, remember, and carry out detailed instructions 3 • Maintain attention and concentration for extended periods 4 • Work in coordination with others without being distracted by them 5 • Complete a normal workday and workweek without interruptions from 6 psychologically based symptoms and to perform at a consistent pace without an 7 unreasonable number and length of rest periods, elaborating Plaintiff “retains the 8 capacity of sustain simple repetitive work at an acceptable pace” [9] • Interact appropriately with the public [10] • Accept instructions and respond appropriately to criticism from supervisors [11] • Respond appropriately to changes in the work setting [12] • Set realistic goals or make plans independently of others, elaborating Plaintiff “is [13] able to copy with normal work changes in a non-demanding work environment.” [14] (Id.) [15] Based on her assessment of the totality of these factors, Dr. Adamo determined [16] Plaintiff has moderate limitations in (1) restriction of activities of daily living; (2) social [17] functioning; and (3) concentration, persistence, or pace. (AR 126.) In so concluding, Dr. [18] Adamo determined Plaintiff did not qualify as disabled. (AR 131.) Dr. Adamo explained [19] Plaintiff’s “condition results in some limitations in [her] ability to perform work related [20] activities but does not prevent [her] from working” and that Plaintiff’s “condition is not [21] severe enough to keep [her] from working.” (Id.) Dr. Adamo emphasized she considered [22] “the medical and other information and work experience in determining how [her] [23] conditions affects [her] ability to work.” (Id.) [24] iii. Dr. Blusiewicz’s Evaluation [25] On February 7, 2017, Dr. Catherine Blusiewicz conducted a consultative [26] examination of Plaintiff’s mental health. Dr. Blusiewicz noted Plaintiff suffered from [27] borderline intellectual functioning, substance addiction, and personality and affective [28] 1 disorders. (AR 141.) In doing so, Dr. Blusiewicz determined Plaintiff had moderate 2 limitations as to her ability to (1) understand, remember, or apply information; (2) 3 concentrate, persist, or maintain pace; and (3) adapt or manage herself. (AR 142.) Dr. 4 Blusiewicz added Plaintiff exhibited a mild limitation in interacting with others. (Id.) 5 Overall, however, Dr. Blusiewicz’s findings were unremarkable: Plaintiff “can understand 6 and carry out both simple and low-level detailed tasks for two-hour period during a normal 7 workday,” “complete a normal work day and week without excessive interference from 8 psychological symptoms,” “accept supervision and interact with coworkers and the 9 public,” and “adapt to change and avoid hazards.” (AR 147.) 10 c. Vocational Expert’s Testimony 11 During Plaintiff’s February 7, 2019 administrative hearing, John J. Komar testified 12 as the neutral vocational expert in the matter. ALJ Richardson conducted Mr. Komar’s 13 examination, setting forth Plaintiff’s restrictions and posing a series of hypotheticals to 14 assess in what capacity, if any, Plaintiff could work. (AR 105.) In relevant part, Mr. Komar 15 testified Plaintiff’s Residual Functional Capacity (“RFC”) permitted Plaintiff to work as a 16 collator operator, a photocopying machine operator, and an advertising material distributor. 17 (AR 109.) Mr. Komar elaborated that, respectively, there were 14,700 collator operator 18 jobs, 17,000 photocopying machine operator jobs, and 41,200 advertising material 19 distributor jobs available in the national economy. (AR 107-109; 112.) 20 d. ALJ Richardson’s February 21, 2019 Decision 21 On February 21, 2019, ALJ Richardson issued his Notice of Decision, denying 22 Plaintiff’s benefits claim after finding she was not disabled within the meaning of section 23 1614(a)(3) (A) of the Social Security Act to qualify for benefits. (AR 48.) ALJ Richardson 24 based his conclusion on ten findings of fact: 25 (1) Plaintiff had not engaged in substantial gainful activity since July 26, 2016, the 26 date of her application for disability benefits, citing to 20 C.F.R. 416.971, et seq. 27 (AR 50); 28 / / / 1 (2) Plaintiff had severe impairments consisting of personality disorder; borderline 2 intellectual functioning; major depressive order; methamphetamine 3 dependence; alcohol abuse; and degenerative disc disease of the lumbar spine 4 with right-sided sciatica, citing to 20 C.F.R. 416.920(c). (AR 50.) ALJ Richardson 5 explained “[Plaintiff’s] medically determinable impairments of hypertension, mild 6 asthma, a uterine fibroid, and obesity cause only slight abnormalities that would have 7 no more than a minimal effect on her ability to work.” (AR 50.) ALJ Richardson 8 otherwise found Plaintiff’s medical condition inconsequential under the objective 9 record2. 10 (3) Plaintiff did not have any impairments that meet or medically equal the severity 11 of the listed impairments in 20 C.F.R. Part 404(P), Appendix 1, citing to 20 12 C.F.R. 416.920(d), 416.925, and 416.926. (AR 51.) ALJ Richardson noted he 13 “considered all listings” with special attention to those implicating compromised 14 nerve roots and spinal cord. (Id.) He found no evidence to support the existence of 15 any physical impairments. (Id.) ALJ Richardson continued “the severity of 16 [Plaintiff’s] mental impairments, considered singly and in combination, do not meet [20] 2 The ALJ noted Plaintiff’s hypertension stabilized on October 20, 2017, and did not require 21 aggressive treatment; Plaintiff was conservatively treated for asthma and her uterine fibroid; and Plaintiff’s obesity did not significantly limit her ability to do basic work [22] activities. (AR 50-51.) Equally important, the ALJ observed, “there is no objective 23 documentation to confirm the existence of [left shoulder pain, bilateral hip pain, seizures, or a sinus headache] lasting the requisite time period” and cited to “normal” and [24] “unremarkable” physical examination results, such as June 2, 2016 imaging of Plaintiff’s 25 left shoulder; June 2, 2016 X-rays of Plaintiff’s bilateral hips; March 22, 2016 MRIs of Plaintiff’s bilateral hips; December 21, 2017 unsubstantiated self-reporting of a headache [26] and pain behind the left eye; and (4) April 29, 2017 workup records that were “non27 diagnostic” of a “possible episode of syncope.” (AR 51.) Accordingly, the ALJ concluded “[Plaintiff’s] complaints of left should[er] pain, bilateral hip pain, seizures, and a sinus [28] 1 or medically equal the criteria of listings …” (Id.) Ultimately, ALJ Richardson 2 concluded Plaintiff failed to exhibit at least two marked limitations or one extreme 3 limitation to satisfy the inquiry under 20 C.F.R. Part 404(P). 4 (4) Plaintiff had a residual functional capacity (“RFC”) to perform light work as 5 defined in 20 C.F.R. 416.967(b) except she could lift and/or carry 20 pounds 6 occasionally and 10 pounds frequently; stand and/or walk for six hours of an 7 eight-hour work day, and sit for six hours of an eight-hour workday; 8 occasionally push and pull with the right lower extremity; never climb ladders, 9 scaffolds, or ropes, but could occasionally climb ramps and stairs, balance, 10 stoop, kneel, couch, and crawl; understand, remember, and carry out simple, 11 routine, repetitive tasks with breaks every two hours; have no interaction with 12 the general public, but could have occasional work-related, non-personal, non13 social interaction with co-workers and supervisors; tolerate only occasional 14 changes in the work setting; and do work requiring no more than a fifth grade 15 reading level and a third grade spelling and arithmetic level. (AR 52-53.) Under 16 20 C.F.R. 416.927, ALJ Richardson considered all symptoms, the extent to which 17 these symptoms could reasonably be accepted as consistent with objective medical 18 evidence, and opinion evidence. (AR 53.) ALJ Richardson also accepted Plaintiff 19 displayed impairments that could reasonably be expected to cause Plaintiff to [21] 3 The ALJ elaborated Plaintiff exhibited (1) moderate limitations in understanding, [22] remembering, or applying information as well as concentrating, persisting, or maintaining 23 pace; adapting or managing oneself; and (2) a mild limitation in interacting with others. (Id.) The ALJ added Plaintiff generally “exhibited normal findings on mental status [24] examinations, except for some notes of poor judgment” and “reported improvement in her 25 mood with proper medication management and compliance.” (Id.) Concurrently, the ALJ considered Plaintiff self-reporting “up and down mood, some non-command voices, and [26] being more upset and sad[der]” and that she exhibited “some abnormal findings on mental 27 status examination during the psychological consultative examination such as flat affect; a dysthymic mood and constricted affect; moderately diminished attention span, [28] 1 experience pain. (Id.) For this reason, ALJ Richardson accounted for additional 2 evidence indicating the degree to which Plaintiff could perform work-related 3 activities, encompassing the intensity, persistence, and limiting effects of Plaintiff’s 4 symptoms.4 (Id.) However, in reviewing the entirety of the record, ALJ Richardson 5 identified inconsistencies between Plaintiff’s testimony regarding her physical5 and 6 mental6 condition and the objective medical evidence. (AR 53-55.) [8] 9 4 This additional evidence included contextual information regarding Plaintiff’s age and her 12th grade education level; Plaintiff’s testimony regarding January 1, 2010 as the [10] alleged disability onset date and that she cannot work due to back pain radiating to her right 11 leg, her inability to lift more than 10 pounds, and difficulty following instructions and managing her stress; and an August 7, 2016 function report consisting of Plaintiff’s self12 reported issues. (AR 54.) 13 5 The inconsistencies regarding Plaintiff’s physical condition included, but were not limited to: treatment records indicating the onset of any disabling condition Plaintiff experienced [14] was on August 12, 2015 and not on January 1, 2010, as Plaintiff reported; a normal 15 February 11, 2016 x-ray of Plaintiff’s lumbar spine and a February 27, 2017 follow-up xray that refuted Plaintiff’s allegations of disabling back pain; records from Plaintiff’s May [16] 31, 2016 visit to the emergency room after “running out of medications” for back pain, 17 where Plaintiff “was constantly asking when she would be discharged and [stating] she did not want further workup;” records indicating Plaintiff was recommended for only [18] conservative treatment for her alleged back pain and Plaintiff’s personal use of a cane “is 19 not medically necessary for ambulation;” other records in which Plaintiff “acknowledged she has no problems with personal care; is able to cook, clean, care for, and wash clothes [20] for her children; care for her pets; prepare her own meals; perform household chores,” etc.; 21 her admissions on November 28, 2018 that her pain medications “provide[d] over 50 percent relief” and she could “perform her activities of daily living independently.” [22] 6 The inconsistencies regarding Plaintiff’s mental condition included, but were not limited 23 to: alleging a disabling mental condition as early as 2010 but declining a referral for mental health treatment provided by Plaintiff’s primary care provider, Dr. Nona M. Girardi, on [24] February 29, 2016; August 3, 2016 psychiatric progress notes indicating Plaintiff’s mental 25 status examination showed she “had fair hygiene, no motor agitation or retardation, normal speech, appropriate affect, no suicidal ideation, goal-directed thought process, no delusions [26] or perceptual disturbances, ok insight and judgment, and [Plaintiff] report[ing] her mood 27 was alright” despite that, during the same appointment, Plaintiff reported “she was drinking more, had difficulty sleeping, and was hearing non-command voices;” on December 13, [28] 1 (5) Plaintiff has no past relevant work, citing to 20 C.F.R. 416.965 (AR 59); 2 (6) Plaintiff was born on December 6, 1977 and was 38 years old, which is defined 3 as a younger individual age 18 – 49, on the date the application was filed, citing 4 to 20 C.F.R. 416.963 (AR 59); 5 (7) Plaintiff has at least a high school education and is able to communicate in 6 English, citing to 20 C.F.R. 416.964 (AR 59); 7 (8) Transferability of job skills is not an issue because Plaintiff lacks past relevant 8 work, citing to 20 C.F.R. 416.968 (AR 59); 9 (9) Given her age, education, work experience, and residual functional capacity, 10 Plaintiff is able to perform certain jobs that exist in significant numbers in the 11 national economy, citing 20 C.F.R. 416.969 and 416.969(a) (AR 59). ALJ 12 Richardson cited to the vocational expert’s testimony that, given Plaintiff’s 13 limitations, she could still work as a collator operator, photocopying machine 14 operators, or an advertising material distributor. (AR 59-60.) Based on such 15 testimony, ALJ Richardson opined Plaintiff “is capable of making a successful 16 adjustment to other work that exists in significant numbers in the national economy.” 17 (AR 60.) From there, ALJ Richardson concluded “a finding of ‘not disabled’ is 18 therefore appropriate…” (Id.); and 19 (10) Plaintiff has not been under a disability, as defined in the Social Security 20 Act, since July 26, 2016, the date the application was filed, citing to 20 C.F.R. 21 416.920(g) (AR 60). 22 IV. LEGAL STANDARD 23 Section 405(g) of the Social Security Act authorizes unsuccessful disability benefits 24 applicants to seek judicial review of a final agency decision of the Commissioner. 42 25 U.S.C. § 405 (g). The scope of judicial review is limited, as the Commissioner's denial of [27] reported as “being more upset, sad, and angry for no reason,” an inconsistency which [28] 1 benefits “will be disturbed only if it not supported by substantial evidence or is based on 2 legal error.” Brawner v. Sec'y of Health and Human Servs., 830 F.2d 432 , 433 (9th Cir. 3 1988); Sandgather v. Chater, 108 F.3d 978 , 980 (9th Cir. 1997) (substantial evidence is 4 “more than a mere scintilla” but less than a preponderance). At all times, the court must 5 consider the record in its totality, weighing evidence that both supports and weakens the 6 Commissioner's conclusions. Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573 , 7 576 (9th Cir. 1988). Where the ALJ failed to apply the proper legal standards in reaching 8 his decision, the court must set aside the ALJ's decision. Bayliss v. Barnhart, 427 F.3d 9 1211 , 1214 n.1 (9th Cir. 2005). However, where the evidence supports more than one 10 rational interpretation, the court must uphold ALJ’s decision. Allen v. Heckler, 749 F.2d 11 577, 579 (9th Cir. 1984). Deference, under such circumstances, is required rather than 12 permissive. Bayliss, 427 F.3d at1214 n.1; Sandqathe, 108 F.3d at 980. 13 V. DISCUSSION 14 a. Substantial Evidence Supports ALJ Richardson’s RFC Finding 15 Plaintiff disputes ALJ Richardson’s RFC determination and his underlying finding 16 that Plaintiff’s mental health does not preclude her from working in some capacity. Plaintiff 17 points to three perceived oversights in ALJ Richardson’s Notice of Decision, namely (1) 18 excluding the word “short” in referring to Dr. Colonna’s findings that Plaintiff was limited 19 to comprehending “short, simplistic instructions;” (2) failing to account for Dr. Adamo’s 20 determination that Plaintiff can only tolerate “brief, superficial interactions” in a non21 demanding work environment; and (3) assigning only “some” weight to Dr. Blusiewicz’s 22 opinion that Plaintiff is limited to carrying out “simple and low-level detailed tasks.” 23 Defendant counters Plaintiff was not harmed by any of the three instances because ALJ 24 Richardson found Plaintiff more limited than the three psychologists opined. The Court 25 agrees with Defendant and finds substantial evidence underlies ALJ Richardson’s RFC 26 determination. 27 In his Notice of Decision, ALJ Richardson averred he considered all of Plaintiff’s 28 symptoms, the objective medical evidence, and opinion evidence in determining Plaintiff’s 1 RFC. (AR 53.) Further, ALJ Richardson accounted for contextual information including 2 Plaintiff’s age, education level, and own testimony regarding her limitations such as her 3 difficulty following instructions and managing stress. (Id.) In considering these varying 4 sources of information, ALJ Richardson identified a slew of inconsistencies between 5 Plaintiff’s testimony regarding her mental health and the objective evidence. (AR 53-55.) 6 ALJ Richardson itemized these inconsistencies his Notice of Decision. The inconsistencies 7 implicated information as elementary as the onset date of Plaintiff’s disabling mental 8 condition and reflected that Plaintiff’s self-reported disruptions to her sleep and mood 9 between 2016 and 2019 could not be substantiated through the objective medical evidence. 10 (AR 53-55.) See Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992) (an applicant 11 seeking benefits under the Social Security Act must show she suffers an impairment 12 resulting from “anatomical, physiological, or psychological abnormalities that are 13 demonstrable by medically acceptable clinical and laboratory diagnostic techniques”). 14 Given ALJ Richardson’s extensive consideration of the record, substantial evidence 15 supports his RFC determination. Throughout his Notice of Decision, ALJ Richardson cited 16 with specificity to objective evidence, opinion evidence, and Plaintiff’s own admissions, 17 to explain his findings of credibility and the weight he placed upon the varying sources of 18 information. Thomas v. Saul, 830 F. App'x 196 , 198 (9th Cir. 2020) (finding substantial 19 evidence supported ALJ’s denial of disability benefits given objective evidence that 20 conflicted with claimant’s purported inability to work, such as claimant’s positive response 21 to treatment and lengthy gaps in treatment suggesting his impairments were not as limited 22 as he testified); Stubbs–Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) 23 (upholding ALJ’s adverse credibility determination because “[t]he record reflects that 24 claimant has normal activities of daily living, including cooking, house cleaning, doing 25 laundry, and helping her husband in managing finances”); Bray v. Comm’r of Soc. Sec. 26 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). 27 Relatedly, the Court strains to find error in any of the three grievances Plaintiff raises 28 about ALJ Richardson’s Notice of Decision, particularly when considering the absence of 1 controlling authority supporting Plaintiff’s arguments. Regarding ALJ Richardson’s 2 omission of the term “short” from Dr. Colonna’s determination that Plaintiff was limited 3 to comprehending “short, simplistic instructions,” ALJ more than adequately captured the 4 limitation in his Notice of Decision. In his Decision, ALJ Richardson makes clear he 5 “considered and gives significant weight to the opinion of Dr. Colonna, who opined the 6 claimant can understand, remember, and carry out short, simplistic instructions…” (AR 7 57.) Given ALJ Richardson placed “significant weight” on Dr. Colonna’s opinion and 8 found Plaintiff even more limited than Dr. Colonna, Plaintiff fails to demonstrate what 9 harm she suffered here. The authority Plaintiff cites to is not analogous and does nothing 10 to advance Plaintiff’s claim of harm7. 11 Further, just as he found Plaintiff more limited than Dr. Colonna opined, ALJ 12 Richardson found Plaintiff more limited than Drs. Adamo and Blusiewicz opined. Under 13 such circumstances, the Court concludes Plaintiff suffered no harm from ALJ Richardson’s 14 omission of Dr. Adamo’s specific determination that Plaintiff can only tolerate “brief, 15 superficial interactions” in a non-demanding work environment and his assignment of only 16 “some” weight to Dr. Blusiewicz’s opinion that Plaintiff is limited to carrying out “simple 17 and low-level detailed tasks.” Ninth Circuit precedent informs the Court’s decision in cases 18 like Plaintiff’s here, where substantial evidence supports an ALJ’s denial of benefits even [20] 7 For example, Brown-Hunter is not relevant. There, the court found the ALJ erred by 21 making conclusory statements “based on unspecified claimant testimony and a summary of medical evidence that the ‘functional limitations from the claimant’s impairments were [22] less serious than she has alleged.’” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 23 2015). In contrast here, ALJ Richardson’s Notice of Decision is replete with evidencespecific determinations tied to testimony from Plaintiff, the medical record, and multiple [24] physicians’ opinions. Separately, Vincent only bolsters the Commissioner’s position that 25 the “ALJ need not discuss all evidence.” Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393 , 1394–95 (9th Cir. 1984). Further, Vincent is not analogous because ALJ Richardson [26] certainly did not “reject significant probative evidence” by placing significant weight on 27 Dr. Colonna’s opinion and finding Plaintiff more limited than Dr. Colonna did. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393 , 1394–95 (9th Cir. 1984) (commenting the [28] 1 when the ALJ finds a claimant is more limited than as reported by opining physicians. 2 Hubbard v. Astrue, 371 F. App'x 785, 787 (9th Cir. 2010) (citing Andrews v. Shalala, 53 3 F.3d 1035 , 1039–40 (9th Cir.1995) (upholding “ALJ's decision where the evidence is 4 susceptible to more than one rational interpretation when the ALJ “found [claimant’s] 5 abilities were more limited than some other doctors opined”); St. Clair v. Saul, 776 F. App'x 6 447, (Mem)–448 (9th Cir. 2019); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217 , 1222-23 7 (9th Cir. 2010) (holding an ALJ is “not required to provide reasons for assigning only 8 ‘some weight’ to their opinions” in instances where the ALJ finds the claimant more 9 limited than the medical opinions at issue”); Watson v. Barnhart, 126 F. App'x 788 , 789 10 (9th Cir. 2005) (finding ALJ’s decision was supported by substantial evidence and did not 11 abuse his discretion in denying cross-examination after “expressly disclaim[ing] reliance 12 on [a] contested report and rel[ying] instead on the overall record and medical evidence”). 13 b. Substantial Evidence Supports ALJ Richardson’s Determination that 14 Plaintiff Could Perform Work in the National Economy 15 Plaintiff disputes ALJ Richardson’s finding that she could perform other work 16 available in the national economy and aims to discredit the vocational expert’s testimony 17 on the matter. In support of her position, Plaintiff points to perceived procedural and 18 substantive defects in the ALJ’s determination. Procedurally, Plaintiff argues “no evidence 19 of the vocational expert’s methodology exists in this record” and, thus, the ALJ’s reliance 20 on vocational expert testimony was improper. (Doc. No. 14., 18:4-5.) Substantively, 21 Plaintiff argues no substantial evidence exists to support ALJ Richardson’s finding that 22 Plaintiff could perform any work in the national economy. (Doc. No. 14, 20:1-2; 21:15-16; 23 22:12-13; 23:11-12; 24:1-3.) The Commissioner rejects Plaintiff’s arguments, posing that 24 Plaintiff is not a vocational expert herself and that she forfeited the matter when she failed 25 to object to the vocational expert testimony before ALJ Richardson. The Court agrees with 26 the Commissioner. Moreover, even if Plaintiff had not forfeited the issue at the 27 administrative level, the Court finds Plaintiff’s arguments here are unconvincing. 28 / / / 1 The Court first addresses the matter of forfeiture. Controlling Ninth Circuit 2 precedent establishes “appellants must raise issues at their administrative hearings in order 3 to preserve them on appeal before this Court.” See Avol v. Secretary of Health & Human 4 Serv., 883 F.2d 659, 660 (9th Cir. 1989). Meanel narrowed this proposition of law, 5 “hold[ing] that, at least when claimants are represented by counsel, they must raise all 6 issues and evidence at their administrative hearings in order to preserve them on appeal.” 7 Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (finding claimant forfeited her appeal 8 concerning new job statistics she failed to first raise before the ALJ and rejecting her 9 argument that it would be unfair to do so particularly where “she was represented by 10 counsel who knew that all relevant evidence should have been brought to the ALJ’s 11 attention”). Since then, Ninth Circuit case law remains consistent in holding that 12 represented claimants must raise objections before the ALJ to preserve them on appeal. 13 Shapiro v. Saul, 833 F. App'x 695 , 696 (9th Cir. 2021) (“because she was represented and 14 did not challenge the [vocational expert’s] job numbers during the hearing before the ALJ, 15 Shapiro forfeits such a challenge on appeal”); Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th 16 Cir. 2017) (“we now hold that when a claimant fails entirely to challenge a vocational 17 expert's job numbers during administrative proceedings before the agency, the claimant 18 forfeits such a challenge on appeal, at least when that claimant is represented by counsel”). 19 Despite Plaintiff’s silence on the matter, it is apparent from the Court’s review of 20 the record of the proceedings before ALJ Richardson that Plaintiff failed to object to the 21 vocational expert’s testimony by introducing job statistics of her own. Given Plaintiff was 22 represented by counsel at her administrative hearing before ALJ Richardson, Ninth Circuit 23 precedent requires this Court to find that Plaintiff forfeited the matter on appeal. Plaintiff’s 24 citation to Erickson is unavailing because the facts of that case starkly contrast the 25 circumstances here. In Erickson, the Ninth Circuit noted “Erickson properly challenged the 26 accuracy of the vocational expert's jobs numbers by submitting a post-hearing 27 supplemental brief with accompanying exhibits” to the ALJ. Erickson v. Saul, 840 F. App'x 28 167, 168 (9th Cir. 2021). The same cannot be said here because Plaintiff did not raise any 1 of her existing vocational statistics objections to ALJ Richardson. Finally, Plaintiff’s 2 citation to Jaquez, inviting the Court to ignore Plaintiff’s failure to raise vocational 3 objections before ALJ Richardson, is not persuasive. Jaquez is a stand-alone decision set 4 to the backdrop of longstanding, controlling authority and the Ninth’s Circuit’s admonition 5 that “this disposition is not appropriate for publication and is not precedent except as 6 provided by Ninth Circuit Rule 36-3.” Jaquez v. Saul, 840 F. App'x 246 , 247 (9th Cir. 7 2021). The Court finds Plaintiff forfeited this issue when she failed to raise it before ALJ 8 Richardson at her administrative hearing. 9 Separately, even if Plaintiff had not forfeited this issue, the Court finds ALJ 10 Richardson’s determination that Plaintiff could work within the national economy is 11 substantially supported by the record and, more specifically, by the vocational expert’s 12 testimony. It is well established “a vocational expert's recognized expertise provides the 13 necessary foundation for his or her testimony” and, therefore, “no additional foundation is 14 required.” Diez v. Berryhill, 2019 WL 3928778 , at *6 (S.D. Cal. Aug. 19, 2019) (citing 15 Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2005)). Ninth Circuit precedent is 16 similarly unequivocal that, “in the absence of any contrary evidence, a [vocational expert's] 17 testimony is one type of job information that is regarded as inherently reliable; thus, there 18 is no need for an ALJ to assess its reliability.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th 19 Cir. 2017). To this end, the Commissioner can meet its burden to show there exists work 20 in significant numbers in the national economy that comply with a plaintiff’s restrictions 21 based upon the inherent reliability of the vocational expert’s testimony. Ford v. Saul, 950 22 F.3d 1141 , 1159–60 (9th Cir. 2020) (citing Barker v. Sec'y of Health and Human Servs., [23] 882 F.2d 1474 , 1479–80 (9th Cir. 1989)). The Ninth Circuit’s “review of an ALJ’s fact24 finding for substantial evidence is deferential,” where the threshold for substantial evidence 25 is “more than a mere scintilla” such that a “reasonable mind might accept as adequate to 26 support a conclusion.” Ford v. Saul, 950 F.3d 1141, 1157 ; 1159–60 (9th Cir. 2020). 27 In itself, the vocational expert’s testimony readily clears the low substantial evidence 28 bar. As a threshold matter, the vocational expert testified to the veracity of his resume and 1 that his certifications were current at the time of Plaintiff’s administrative hearing. (AR 2 105.) At no time during the administrative hearing did Plaintiff object to the vocational 3 expert’s qualifications. See Papin v. Barnhart, 221 Fed.Appx. 540, 541 (9th Cir. 2007) 4 (noting plaintiff “stipulated to the vocational expert’s qualifications” in rejecting plaintiff’s 5 “conclusory assertions that the vocational expert’s testimony was not grounded in any 6 scientific principles or methodology”). Therefore, as a foundational matter, there can be no 7 dispute over the vocational expert’s qualifications to testify at the administrative hearing 8 in his professional capacity. 9 Further, “for the vocational expert's testimony to constitute substantial evidence, the 10 ALJ must pose a hypothetical based on medical assumptions supported by substantial 11 evidence in the record reflecting each of the claimant's limitations,” where the 12 hypotheticals are “accurate, detailed, and supported by the medical record.” Andrews v. 13 Shalal, 53 F.3d 1035, 1044 (9th Cir.1995); Tackett v. Apfel, 180 F.3d 1094, 1101 (9th 14 Cir.1999). Here, ALJ Richardson appropriately questioned the vocational expert regarding 15 what jobs, if any, exist in the national economy for an individual with Plaintiff’s age, 16 education, work experience, and RFC in light of the Medical-Vocational Guidelines. In 17 doing so, ALJ Richardson delineated Plaintiff’s limitations with specificity and 18 consistency with Plaintiff’s medical record and posed a series of hypotheticals to the 19 vocational expert that accounted for those limitations. (AR 106-107.) In turn, the vocational 20 expert considered each of these factors and provided a limited list of such jobs that 21 complied with Plaintiff’s restrictions, namely a collator operator, photocopying machine 22 operators, or an advertising material distributor. (AR 59-60.) In doing so, the vocational 23 expert cited to the Dictionary of Occupational Titles (“DOT”), wherever applicable, 24 explained the level of sedentary exertion each position required, and set forth the number 25 of jobs available in the national economy for each line of work. For these collective 26 reasons, the Court finds ALJ Richardson’s reliance on the vocational expert’s testimony [28] 1 was supported by substantial evidence in the record . 2 Plaintiff’s argument that the vocational expert’s methodology was faulty falls flat 3 considering Plaintiff offers no legal authority that in fact supports her position. Indeed, 4 none of the case law Plaintiff cites comes to her aid, as the Eleventh Circuit’s 2020 Goode 5 case is not binding upon this Court and the Ninth Circuit’s 2020 Ford case favors finding 6 for the Commissioner on this issue. Ford, 950 F.3d at 1159-1160 (holding, in part, the 7 vocational expert’s failure to produce underlying data did not undermine the testimony’s 8 reliability); see generally Goode v. Comm’r of Soc. Sec., 966 F.3d 1277 (11th Cir. 2020). 9 Notably, despite disagreeing with the vocational expert’s testimony, Plaintiff does not 10 presently argue and did not argue during the administrative hearing that the vocational 11 expert’s testimony is in “obvious or apparent” conflict with estimates provided in the DOT 12 or contradicts the Medical-Vocational Guidelines. Swenson v. Sullivan, 876 F.2d 683 , 689 13 (9th Cir. 1989); Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017). For this reason, 14 ALJ Richardson was not obligated to “sua sponte investigate and resolve [any perceived] 15 conflict.” Ford, 950 F.3d at 1159 . Moreover, the vocational expert was not obligated to set 16 forth his methodology, and his credibility did not hinge upon his testimony as to his 17 methodology. Biestek v. Berryhill, 139 S. Ct. 1140, 1155-1156 (2019) (“a vocational 18 expert’s testimony may count as substantial evidence even when unaccompanied by 19 supporting data”). [21] 8 The Court is not persuaded by Plaintiff’s argument that ALJ Richardson’s decision is [22] improper because ALJ Richardson failed to address Plaintiff’s reading or writing abilities 23 with the vocational expert. ALJ Richardson’s Notice of Decision articulates the vocational expert’s testimony that the Dictionary of Occupational Titles does not address reading, [24] spelling, and arithmetic levels and, for this reason, the vocational expert testified as to 25 literacy limitations based on information available to him, namely his professional experience. (AR 60.) The DOT’s silence on the matter, coupled with the vocational [26] expert’s undisputed qualifications and inherent reliability, dispel any notion that ALJ 27 Richardson unreasonably or insufficiently addressed Plaintiff’s literacy limitations with the vocational expert. [28] 1 VI. CONCLUSION 2 For the Foregoing reasons, the Court DENIES Plaintiff's motion for summary 3 || judgment and GRANTS Defendant’s motion for summary judgment. 4 IT IS SO ORDERED. 5 DATED: September 27, 2021 LM Ss ’ Hon. William V. Gallo 8 United States Magistrate Judge