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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JOHNATHAN FAY,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Case No.: 3:24-cv-1774-WQH-MSB
ORDER
HAYES, Judge:
The matter before the Court is the review of Magistrate Judge Michael S. Berg’s
Report and Recommendation (ECF No. 21) recommending that the Commissioner of
Social Security’s decision be affirmed.
I. 	BACKGROUND
On October 4, 2024, Plaintiff Johnathan Fay (“Plaintiff”) filed a Complaint seeking
judicial review of the Commissioner of Social Security’s (“Commissioner”) decision to
deny his application for Disability Insurance Benefits and Supplemental Security Income.
(ECF No. 1.)
On February 25, 2025, Plaintiff filed a Brief in Support of Remand, seeking to vacate
the Commissioner’s decision and remand the case for further administrative proceedings.
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(ECF No. 15.) On April 2, 2025, the Commissioner filed a Responsive Brief. (ECF No.
18.) On April 15, 2025, Plaintiff filed a Reply. (ECF No. 19.)
On January 6, 2026, Magistrate Judge Michael S. Berg issued a Report and
Recommendation 	for 	Order 	Affirming 	the 	Commissioner’s 	Decision 	(“Report 	and
Recommendation”). (ECF No. 21.)
On January 14, 2026, Plaintiff filed Objections to the Report and Recommendation.
(ECF No. 23.)
II. 	LEGAL STANDARD
The duties of the district court in connection with a report and recommendation of a
magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C.
§ 636(b). The district judge must “make a de novo determination of those portions of the
report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1).
III. 	REPORT AND RECOMMENDATION
In the Report and Recommendation, Judge Berg recommended that the Court issue
a judgment affirming the Commissioner’s decision to deny Plaintiff’s application for
benefits. (ECF No. 21 at 21.)
A. ALJ’s Supportability and Consistency Analysis Regarding Dr. Andelin’s
Opinion
First, Judge Berg assessed whether the Administrative Law Judge (“ALJ”) who
denied Plaintiff’s application properly evaluated the medical opinion of Dr. Lane B.
Andelin using the “supportability” and “consistency” factors laid out in 20 C.F.R.
§ 416.920c. Id. at 6–13. Judge Berg found that the ALJ “did not satisfy the ‘supportability’
requirement of the relevant analysis.” Id. at 10. However, Judge Berg concluded that the
ALJ’s “consistency analysis was sound.” Id. at 11. Judge Berg held that the “ALJ’s error
in her supportability analysis does not warrant reversal” because the error was harmless.
Id. at 12. Judge Berg reasoned that:
[a]n ALJ’s decision will only be reversed if the error is not harmless. Smith v.
Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021). Although the supportability and
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consistency factors are the most important considerations when evaluating the
persuasiveness of medical opinions, even if the ALJ errs in evaluating one of
these factors, the error may be deemed harmless if substantial evidence
supports the ALJ’s decision. See generally id. Here, the ALJ’s error in her
supportability analysis does not warrant reversal, because the error is not
significant enough to cast doubt on the ALJ’s disability determination. See
Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (“We may affirm the ALJ’s
decision even if the ALJ made an error, so long as the error was harmless,
meaning 	it 	was 	‘inconsequential 	to 	the 	ultimate 	nondisability
determination.’”) (quoting Tommasetti, 533 F.3d at 1038). Despite finding Dr.
Andelin’s opinion to be “less persuasive” [AR 25], the ALJ nevertheless
accounted for the mild and moderate limitations identified by Dr. Andelin in
her RFC determination but rejected the marked limitation because it was
inconsistent with the overall record. Thus . . . the ALJ’s error was harmless.
Id. at 11–12.
B. ALJ’s Mental RFC Determination
Second, Judge Berg assessed whether the ALJ’s residual functional capacity
(“RFC”) determination was erroneous because the ALJ “rejected the mental opinion [of
Dr. Andelin] and crafted an RFC based on her own interpretation of the evidence.” Id.
(quoting ECF No. 15 at 13.) Judge Berg found that, contrary to Plaintiff’s contentions, the
ALJ did not craft her mental RFC determination “out of thin air.” Id. at 16 (quoting ECF
No. 15 at 11.) Instead, the ALJ “reviewed and cited numerous records documenting
Plaintiff’s physical and mental health,” including “Plaintiff’s own hearing testimony, prior
administrative medical findings, [] all available state agency reports,” and “various
professionals’ evaluations of Plaintiff, including law enforcement investigators, doctors,
nurses, physician assistants, and therapists” to craft the mental portion of her RFC
determination. Id. (citations omitted).
Judge Berg stated that the relevant regulations “do not mandate the [ALJ’s] adoption
of any specific opinion, even if it is uncontradicted.” Id. at 17. Judge Berg concluded that
Dr. Andelin’s opinion “is 	contradicted” by “[m]ultiple evaluations by medical and
nonmedical sources,” especially on the issue of “Plaintiff’s social anxiety and capacity to
remember and understand instructions.” Id. at 18. Judge Berg noted that the ALJ cited
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evidence from multiple sources to support her analysis of Dr. Andelin’s opinion, including
“other psychological and physical evaluations of Plaintiff, particularly those immediately
following Dr. Andelin’s evaluation in 2016.” Id. at 19. Judge Berg concluded that the
“ALJ’s RFC determination accounted for the [Dr. Andelin’s findings of] mild and
moderate limitations by restricting Plaintiff to jobs that require understanding and memory
of ‘simple work’ and workplaces in which only ‘occasional changes’ occur.” Id. at 17.
IV. 	DISCUSSION
A. ALJ’s Improper Supportability Analysis of Dr. Andelin’s Opinion Was
Harmless Error
Plaintiff objects to the Report and Recommendation’s finding that although “‘the
ALJ did not satisfy the supportability requirement of the relevant analysis,’ the error is
harmless.” (ECF No. 23 at 5 (quotation omitted).) Plaintiff contends that “[a]dopting the
Report and Recommendation would be at odds with the Ninth Circuit[’s] holdings which
recognize that substantial evidence is not a defense to an ALJ’s legal error.” Id. at 6.
Plaintiff further contends that the ALJ’s legal error was not harmless because “the improper
rejection of the opinion of Dr. Andelin yielded vocational testimony which fails to carry
the agency’s burden of proof at the final step in the sequential evaluation process.” Id.
An ALJ’s “decision to deny benefits will only be disturbed if it is not supported by
‘substantial evidence or it is based on legal error.’” Burch v. Barnhart, 400 F.3d 676, 679
(9th Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). A court
“may affirm the ALJ’s decision even if the ALJ made an error, so long as the error was
harmless, meaning it was ‘inconsequential to the ultimate nondisability determination.’”
Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d
1035, 1038 (9th Cir. 2008)).
Here, Judge Berg concluded that the ALJ’s supportability analysis error was
harmless because her RFC determination properly incorporated Dr. Andelin’s opinion.
(ECF No. 21 at 12.) Specifically, Judge Berg found that the “ALJ’s RFC determination
sufficiently 	addressed 	Dr. 	Andelin’s 	opinion 	regarding 	Plaintiff’s 	mild 	limitations
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[regarding 	social 	interactions] 	by 	limiting 	Plaintiff 	to 	unskilled 	work, 	including
occupations with little human interaction such as production assembler.” Id. (citation
omitted). Judge Berg likewise found that the ALJ’s RFC determination accounted for the
“moderate limitations in understanding and remembering complex instructions . . . and
responding appropriately to changes” described by Dr. Andelin because the ALJ limited
Plaintiff to “simple” work where “only occasional changes in the workplace occur.” Id. at
12–13. Lastly, Judge Berg stated that the ALJ properly considered Dr. Andelin’s finding
that Plaintiff had a “marked limitation in making judgments on complex work-related
decisions” because the ALJ limited Plaintiff to jobs that require him to “understand,
remember, and perform simple work”—not complex work. Id. at 13.
The 	Court 	agrees 	with 	Judge 	Berg’s 	finding 	that 	“the 	ALJ’s 	error 	in 	her
supportability analysis does not warrant reversal[] because the error is not significant
enough to cast doubt on the ALJ’s disability determination.” (ECF No. 21 at 12.) Even
though the ALJ disagreed with Dr. Andelin’s opinion, she still incorporated his findings
into her RFC determination, as discussed above. The ALJ’s error in analyzing the
supportability of Dr. Andelin’s opinion was harmless because it “was nonprejudicial to the
claimant or irrelevant to the ALJ’s ultimate disability conclusion.” Stout v. Comm’r, Soc.
Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (citation omitted); see also Turner v.
Comm’r of Soc. Sec., 613 F.3d 1217 (9th Cir. 2010) (finding that ALJ appropriately
incorporated doctor’s observation of plaintiff’s post-traumatic stress disorder into his RFC
determination by limiting plaintiff to simple, routine work “without significant background
activity”). 	The 	Court 	overrules 	Plaintiff’s 	first 	objection 	to 	the 	Report 	and
Recommendation.
B. ALJ’s Mental RFC Determination Was Proper
Plaintiff objects to Judge Berg’s conclusion that “whether or not Dr. Andelin’s
opinion was the only remaining mental opinion of record is immaterial because an ALJ is
not required to adopt a medical opinion, even if it is the only mental opinion of record.”
(ECF No. 23 at 7.) Plaintiff contends that because the state agency psychological
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consultants failed to provide a medical opinion and the ALJ found Dr. Andelin’s opinion
“less persuasive,” the “record contains no medical opinion assessing what Plaintiff can still
do mentally.” Id. Plaintiff argues that the ALJ thus had a “duty to obtain an assessment
from a medical source with access to this evidence, rather than . . . play doctor and craft
the RFC from her own attempt to interpret the raw medical data.” Id. Plaintiff contends
that although the ALJ relied on medical “evidence,” she did not properly rely on a medical
“opinion.” Id. at 7–8.
As 	discussed 	above, although 	the ALJ deemed 	Dr. Andelin’s 	opinion 	“less
persuasive,” her RFC determination still reflected the limitations found by Dr. Andelin. In
discrediting Dr. Andelin’s opinion, the ALJ cited contradictory evidence regarding
Plaintiff’s alleged mental limitations from a multitude of sources. (See ECF No. 21 at 16–
18.) Accordingly, Judge Berg concluded that the ALJ “had no duty to develop the record
further because the evidence unambiguously supports the RFC determination.” Id. at 18.
The 	Court 	agrees 	and 	overrules 	Plaintiff’s 	second 	objection 	to 	the 	Report 	and
Recommendation.
V. 	CONCLUSION
IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 21) is
adopted in full.
IT IS FURTHER ORDERED that the Administrative Law Judge’s decision finding
Plaintiff not disabled and denying his application for Disability Insurance Benefits and
Supplemental Security Income is AFFIRMED. The Clerk of the Court shall enter judgment
in favor of the Commissioner and against Plaintiff. The Clerk of the Court shall close this
case.
Dated: March 26, 2026
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