McNicol v. Commissioner of Social Security Administration

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
James McNicol,
Plaintiff
-vs-
Commissioner of Social Security
Administration,
Defendant.
CV-25-8007-PCT-SPL (JFM)
Report & Recommendation
Plaintiff seeks review under 42 U.S.C. § 405(g) of the final decision of the
Commissioner of Social Security who denied him disability insurance benefits under the
Social Security Act.
This matter is now ripe for consideration. Accordingly, the undersigned makes the
following proposed findings of fact, report, and recommendation pursuant to Rule 72(b),
Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(10), Local Rules
of Civil Procedure.
A. SUMMARY OF THE CASE
On November 10, 2021 Plaintiff filed an application for benefits, asserting that he
became disabled as of February 11, 2016, when he was 34 years old, based on orthopedic
conditions and associated debilitating pain, particularly in the low back. (AR 29.) He was
receiving a disability pension from the Veteran’s Administration and had no past relevant
work. (AR 26, 36.)
In a decision issued September 13, 2024, the ALJ found Plaintiff generally eligible
for benefits given his date last insured, and non-employment. The ALJ found Plaintiff had
the following severe physical impairments: lumbar spine degenerative disc disease,
surgically treated with L4-5 and L5-S1 fusion; osteoarthritis of the left knee; degenerative
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joint disease of the bilateral hips; and obesity (20 C.F.R. § 404.1520(c)). (AR 25.) The
ALJ also found the following non-severe physical impairments: hyperlipidemia, adrenal
adenoma, hepatitis steatosis, diverticulosis, obstructive sleep apnea, ileocolonic
mesenteric lymphadenopathy, migraine, PTSD, and alcohol abuse – uncomplicated.
The ALJ found medically determinable mental impairments of PTSD and
alcohol abuse, but found only mild limitations in each of the four broad functional areas
of mental functioning. The ALJ found no combination of impairments that established
disability under the listings.
The ALJ found Plaintiff had the following residual functional capacity:
through the date last insured, the claimant had the residual functional
capacity (RFC) to perform sedentary work as defined in 20 CFR
404.1567(a) with the following limitations: lift and carry 20 pounds
occasionally and 10 pounds frequently; sit for six hours out of an
eight-hour day and stand and/or walk for four hours out of an eight-
hour day; occasionally climb ramps and stairs, never climb ladders,
ropes, or scaffolds; occasionally balance, stoop, kneel, and crouch,
never crawl; occasionally reach overhead and frequently reach in all
other directions; avoid concentrated exposure to extreme cold,
vibration, and hazards, like dangerous moving machinery and
unprotected heights.
(AR 28 (emphasis added).) 1 The ALJ concluded that Plaintiff had no past relevant work,
was a “younger” individual with a high school education, and had the RFC to perform the
following jobs that existed in significant numbers in the national economy: ticket checker,
telephone quotation clerk, and document preparer. Accordingly, the ALJ determined
Plaintiff was not disabled.
Plaintiff argues in his Opening Brief (Doc. 17) that the ALJ erred as follows:
(1) Failing to adequately evaluate Plaintiff’s alcoholism in determining an RFC,
as required by 20 C.F.R. § 416.935.2
1 The Administrative Record (Doc. __) is referenced herein as “AR”, and the labelled
Exhibits including in the Administrative Record are referenced herein as “Ex. ___.” The
briefs are referenced herein as OBr. (Opening Brief, Doc. ___), ABr. (Answering Brief,
Doc. __), and RBr. (Reply Brief, Doc. ___).
2 § 416.935 relates to supplement security benefits. Because Plaintiff’s application was
for disability insurance benefits, the undersigned evaluates this claim under the
corresponding sections for such benefits, 20 C.F.R. § 404.1535
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(2) Failing to adequately evaluate the impacts of Plaintiff’s mild mental
impairments in determining the RFC.
(3) Failing to explain why the job of document preparer was not obsolete and
thus irrelevant, and failing to evaluate the local or regional availability of the
other jobs.
Thus, Plaintiff seeks a reversal and remand for further hearing.
B. STANDARDS OF REVIEW
Reviewed Decision - In this instance, because the Appeals Council denied review
(AR 8), the ALJ’s decision is the final decision of the agency, and the decision now under
review. 20 C.F.R. § 404.981.
Bases for Reversal - The court may set aside the agency’s disability determination
only if the determination is not supported by substantial evidence or is based on legal error.
Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
The phrase “substantial evidence” is a “term of art” used throughout
administrative law to describe how courts are to review agency
factfinding. Under the substantial-evidence standard, a court looks to
an existing administrative record and asks whether it contains
sufficient evidence to support the agency's factual determinations.
And whatever the meaning of “substantial” in other contexts, the
threshold for such evidentiary sufficiency is not high. Substantial
evidence, this Court has said, is more than a mere scintilla. It
means—and means only—such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotations, alterations and citations
omitted).
Limited to ALJ’s Reasoning - In reviewing the ALJ’s decision, neither the parties
nor the Court can manufacture their own reasons to support the decision made by the ALJ.
“We review 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.” Garrison v. Colvin, 759 F.3d
995, 1010 (9th Cir. 2014); see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The
grounds upon which an administrative order must be judged are those upon which the
record discloses that its action was based.”); Connett v. Barnhart, 340 F.3d 871, 874 (9th
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Cir. 2003) (“We are constrained to review the reasons the ALJ asserts. It was error for the
district court to affirm the ALJ's credibility decision based on evidence that the ALJ did
not discuss.”).
But in identifying the ALJ’s reasons, the Court is not constrained solely by the
ALJ’s organization of his opinion, and can make reasonable inferences reading the
decision as a whole. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).
Not Limited to ALJ’s Record Citations – The ALJ is not mandated to provide
record citations, but rather to provide reasons. So long as the purported “facts” underlying
those reasons find support in the record, the ALJ’s decision must be sustained. “Thus, it
is clear that both this court and the district court may look to any evidence in the record
regardless of whether it has been cited by the Appeals Council.” Walker v. Sec'y of Health
& Hum. Servs., 884 F.2d 241, 245 (6th Cir. 1989). See also 4 Soc. Sec. Law & Prac. §
55:67 (2022). Indeed, the reviewing court may reverse “only if the ALJ's decision was not
supported by substantial evidence in the record as a whole.” Molina v. Astrue, 674 F.3d
1104, 1110 (9th Cir. 2012) (emphasis added).
On the other hand, “[t]hough the ALJ need not address every piece of evidence, he
must articulate, at some minimum level, his analysis of the record so that the reviewing
court can follow his reasoning.” Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002).
“If the reviewing court has no way of evaluating the basis for the ALJ's decision, then ‘the
proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.’” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)
(quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). See also
Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the
reasons the ALJ asserts. It was error for the district court to affirm the ALJ's credibility
decision based on evidence that the ALJ did not discuss.” (emphasis added)). Thus, a
decision supported only by a bare reference to “the record” would justify remand, even if
some portion of the record might support the decision, if the decision did not otherwise
make clear the ALJ’s reasons.
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Harmless Error - “A decision of the ALJ will not be reversed for errors that are
harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). An error is harmless if
there remains substantial evidence supporting the ALJ’s decision and the error does not
affect the ultimate nondisability determination. Molina, 674 F.3d at 1115. An error is
harmless if it either “occurred during a procedure or step the ALJ was not required to
perform,” or if it “was inconsequential to the ultimate nondisability determination.” Stout
v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Harmlessness does not
require the court to determine what ultimate decisions the ALJ would have made if the
error had not been committed, but only to ask whether the remaining bases for the decision
are sufficient to support the decision. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d
1155, 1162 (9th Cir. 2008).
C. CONSIDERATION OF ALCOHOLISM
1. Legal Background
Plaintiff was found to have an impairment of alcoholism. 42 U.S.C. § 423(d)(2)(C)
provides: “An individual shall not be considered to be disabled for purposes of this
subchapter if alcoholism or drug addiction would (but for this subparagraph) be a
contributing factor material to the Commissioner's determination that the individual is
disabled.”
Where a drug addiction or alcoholism (DAA) impairment is present, the limitations
stemming (in whole or part) from the DAA are considered in the initial five-step3 disability
determination. 10 C.F.R. § 404.1535. If the claimant is found disabled under the five-
step process, the ALJ must then determine whether the DAA “is a contributing factor
material to the determination of disability,” (i.e. the claimant would not be disabled
without consideration of limitations resulting from the DAA). 20 C.F.R. §§ 404.1535(a).
See Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). That “materiality”
3 The five-step sequential evaluation includes: (1) nonemployment; (2) impairments; (3)
listings; (4) residual functional capacity and past work; and (5) available work. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
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determination is made only if there is a medically determined substance abuse disorder
and the claimant is found to be disabled (when including limitations from the DAA) in the
five-step process. SSR 13-2P, supra. at ¶ 3(a).
2. Parties’ Arguments
Plaintiff argues the ALJ erred by failing to adequately assess the impacts of
Plaintiff’s alcoholism during the five step process and failure to conduct a subsequent
“materiality” determination, as mandated by 20 C.F.R. § 404.1435, et seq. (OBrf. at 9-
13.) Cf. 20 C.F.R. § 416.935 et seq. (DAA and SSI benefits).
The Commissioner answers that because disability was not found under the five-
step analysis, which included consideration of the DAA, the “materiality” determination
was not a necessary step. (ABrf. at 2-3.)
Plaintiff replies that the ALJ considered the DAA during the five-step analysis in
“only a perfunctory fashion.” Plaintiff concedes the ALJ addressed the DAA when finding
“mild limitations” in mental impairments, bur failed to address such impairments in
formulating his RFC. Plaintiff also argues the ALJ failed to analyze the physical
limitations from the DAA (or the mental and physical impairments in combination). (RBrf.
at -3.) Plaintiff opines:
Drinking to intoxication 3-4 times per week could certainly result in
some level of tardiness, absenteeism, off-task time, or other
behaviors. Also, there may have been a need for social limitations or
a limitation for a low stress environment as there is evidence of
argumentativeness, anger issues, rage, and irritability. (R. 279-280,
851, 853, Ex. 8E, 7F). There may also need to be a limitation for
simple tasks as there is evidence of short-term memory and delayed
recall. (R. 271, 852, 1495, Ex. 7E, 7F, 19F).
(RBrf. at 4.)
3. ALJ’s Decision
At Step Two (impairments), the ALJ found that one of Plaintiff’s nonsevere
impairments was “alcohol abuse – uncomplicated,” and that all of Plaintiff’s nonsevere
impairments were “medically managed and under control with medication and/or
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otherwise do not cause more than minimal limitations in basic work activities.” (AR 25.)
The ALJ discussed various medical physical findings without differentiating between the
alcoholism and the other non-severe impairments. (Id.) The ALJ concluded:
“Nevertheless, these conditions will be considered in determining the claimant’s residual
functional capacity, and if warranted, reflected in that assessment.” (Id.)
The ALJ determined Plaintiff’s “medically determinable mental impairments
PTSD and alcohol abuse, uncomplicated considered singly and in combination, did not
cause more than minimal limitation in the claimant’s ability to perform basic mental work
activities and were therefore nonsevere.” (Id. (emphasis added).) The ALJ then discussed
the four broad areas of mental function (or “paragraph B” criteria).
At Step Four (RFC), the ALJ discussed the findings of Dr. Cofield, Psy. D. (Exh.
6F) on various mental impairments, including “alcohol abuse, uncomplicated.” (AR 33.)
Cofield noted Plaintiff “acknowledged drinking to intoxication 3 to 4 times a week because
he said it controls his pain without any medication side effects.” (AR 33.) Cofield went
on to describe Plaintiff’s activities of daily living. (Id.) The ALJ concluded: “Cofield’s
objective findings on exam and the claimant’s reported and observed levels of functioning
otherwise support the finding that the claimant has no severe mental impairments.” (Id.)
The ALJ reviewed the psychological findings, diagnosis of PTSD, and opinions of
Dr. Steven Patrick, Ph.D. (Exh. 19F) that “there was nothing to suggest the claimant would
have any work restrictions based on mental health problems, and he assessed no limitations
in any of the four ‘B’ criteria domains.” (AR 33.) The ALJ concluded: “This opinion is
persuasive based upon its consistency with the medical evidence regarding the claimant’s
PTSD, to the extent it supports the finding that this impairment does not result in more
than mild limitations and otherwise is nonsevere.” (Id.)
4. Application of Law
a. No Materiality Determination Required
As argued by the Commissioner, the “materiality” determination mandated by 20
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C.F.R. § 404.1535 was not required in this case because the ALJ had concluded
(considering all of Plaintiff’s impairments, including DAA) that Plaintiff was not disabled.
If the ALJ finds that the claimant is not disabled under the five-step
inquiry, then the claimant is not entitled to benefits and there is no
need to proceed with the analysis under 20 C.F.R. §§ 404.1535 or
416.935.
Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001). “If the ALJ finds that the
claimant is not disabled, then the ALJ proceeds no further.” Sax v. Colvin, 31 F. Supp. 3d
1156, 1161 (E.D. Wash. 2014).
b. Adequate Consideration In Five Step Evaluation
Step Two - Contrary to Plaintiff’s argument, the undersigned finds that the ALJ
considered the physical impairments associated with Plaintiff’s alcoholism at Step Two.
(AR 25.) Although the ALJ did not make explicit which physical findings he found
relevant to the DAA, Plaintiff proffers nothing to show that there were relevant physical
findings not considered by the ALJ. Moreover, Plaintiff proffers nothing to show that the
ALJ’s evaluation of the mental impairments at Step Two was inadequate.
Step Four - Plaintiff asserts the ALJ did not provide sufficient analysis of the
alcoholism related impairments at Step Four (RFC). Plaintiff goes to lengths to discuss
the history of his alcohol usage (OBrf. at 9), but points to no records showing interference
with Plaintiff’s ability to engage in employment as a result of alcoholism, whether from
physical or mental impairments.
At most, Plaintiff opines that “alcoholism may cause limitations (such as
absenteeism, tardiness, off-task time),” or “social limitations or a limitation for a low stress
environment,” or “a limitation for simple tasks.” (Id. at 10. See also id. at 12.) But
Plaintiff proffers nothing in the record (including his own symptoms testimony) to show
that such limitations occurred in Plaintiff’s life. (See AR 29.) Moreover, Plaintiff
attributed his inability to work to lower back pain, migraines, and side effects (including
drowsiness) from the medications. (RT, AR 55-56.) While Plaintiff’s DAA may have
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been material to those conditions, the ALJ was not required in the original five step
analysis to differentiate based on the origin of the impairment or limitation. Indeed, he was
required to not do so.
Plaintiff argues evidence of limitations could have been developed if the ALJ had
“performed a DAA analysis” or a “proper analysis.” (OBrf. at 12-13.) But Plaintiff leaves
this Court to speculate whether that was the case. Indeed Plaintiff points to no evidence,
whether of record or not, which would have been developed. At best, Plaintiff reiterates
evidence that he was engaging in alcohol abuse. (OBrf. at 10.) Plaintiff further argues
that the ALJ found “no more than minimal limitation,” and thus must have found “some
level of limitation” and should have analyzed it. (OBrf. at 10; RBrf. at 2.) But a “no more
than minimal” determination is not the same of as a finding of limitation. “Minimal” is
simply the dividing line between “severe” and “nonsevere” impairments, and being less
than minimal includes no limitations.
Moreover, it was Plaintiff’s duty to prove that he was disabled. “You have to prove
to us that you are blind or disabled. You must inform us about or submit all evidence
known to you that relates to whether or not you are blind or disabled.” 20 C.F.R. §
404.1512(a)(1). Any obligation of the ALJ to develop evidence “is triggered only when
there is ambiguous evidence or when the record is inadequate to allow for proper
evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001).
Here, Plaintiff points to no evidence before the ALJ of such limitations from his DAA,
only speculation that they were possible.
The undersigned has identified no reversible error with regard to the ALJ’s
handling of Plaintiff’s alcoholism impairment.
D. EVALUATION OF MENTAL IMPAIRMENTS
1. Parties’ Arguments
Plaintiff argues the ALJ erred by failing at Step Four to: (a) include mental
limitations in the RFC; and (b) explain the absence of the mild mental health limitations
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found at Step Two. (OBrf. at 14.)
Defendant responds that mild mental limitations found in evaluating the “paragraph
B” criteria need not be included in the RFC and that the ALJ’s reference to the RFC in
Step Two’s discussion of mental impairments was sufficient. (ABrf. at 3-4.)
Plaintiff replies that he asserts only the second contention and no binding case law
allows the ALJ to avoid analyzing at Step Four the mental impairments (mild or otherwise)
found at Step Two, and the summary discussion at Step Two did not suffice. (RBrf. at 4-
8.)
2. ALJ’s Decision
At Step Two, after evaluating the evidence and concluding that Plaintiff had no
severe mental impairments, only mild ones, the ALJ opined: “The following residual
functional capacity assessment reflects the degree of limitation the undersigned has found
in the ‘paragraph B’ mental function analysis.” (AR 26.)
At Step Four, the ALJ opined: “The claimant’s mental symptoms are consistent
with his non severe mental impairments.” (AR 32.) The ALJ reviewed the mental health
records from reviewing Drs. Salk and Buckelew, including opinions that “claimant’s
activities of daily living and mental status were not appreciably limited by mental disorder
symptoms through the claimant’s date last insured,” and found these opinions
“persuasive.” (AR 32-33.) The ALJ also reviewed the mental health records from
consulting psychiatrist Dr. Cofield, but concluding “he made no assessment of the
claimant’s mental capacity to perform work activities,” but deemed “Cofield’s objective
findings on exam and the claimant’s reported and observed levels of functioning otherwise
support the finding that the claimant has no severe mental impairments.” (AR 33.)
The ALJ reviewed the mental health records from psychologist Dr. Patrick, and his
opinion that “there was nothing to suggest the claimant would have any work restrictions
based on mental health problems, and he assessed no limitations in any of the four ‘B’
criteria domains.” (AR 33.) The ALJ found that opinion “persuasive…to the extent that
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it supports the finding that this impairment does not result in more than mild limitations
and otherwise is nonsevere.” (Id.)
The ALJ eventually concluded: “In brief summary, the RFC is supported by the
record as a whole, including claimant’s treatment record, his reported and observed levels
of functioning, including at the hearing, and by clinical and laboratory findings and
medical opinion evidence of record.” (AR 35.) The ALJ proceeded to discuss the physical
impairments and to affirm his RFC. (Id.)
3. No Mandate to Include in RFC Restrictions Found at Step Two
In an unpublished decision, the Ninth Circuit has opined:
But an ALJ need not expressly incorporate non-severe mental
impairments already considered and acknowledged at Step Two of
the required five-part analysis into an RFC. See 20 C.F.R. §
404.1520(a)(4); Woods v. Kijakazi, 32 F.4th 785, 794 (9th Cir. 2022)
Dial v. O'Malley, No. 23-3423, 2024 WL 4471510, at *1 (9th Cir. Oct. 11, 2024)
(unpublished). While the parties disagree on the import of Dial and Woods, the decision
in Dial simply reiterates the unremarkable principle that a finding of an impairment at Step
Two, whether severe or nonsevere, does not automatically result in functional restrictions
in the RFC developed in Step Four.
4. RFC Analysis Sufficient
It is true he regulations provide that the RFC determination is to be made with
consideration of “limiting effects of all your impairment(s), even those that are not severe.”
20 C.F.R. § 404.1545(e). For the following reasons, the undersigned concludes that the
ALJ adequately considered Plaintiff’s non-severe, mild mental impairments in formulating
the RFC.
Discussion at Step Two – In evaluating the ALJ’s decision, the Court is not
constrained by the ALJ’s organization of the decision. Rather, the Court is obligated to
make reasonable inferences from the various portions of the ALJ’s decision. Magallenes,
881 F.2d at 755.
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After evaluating the “paragraph B” criteria and finding only mild limitations, the
ALJ observed:
The limitations identified in the “paragraph B” criteria are not a
residual functional capacity assessment but are used to rate the
severity of mental impairments at steps 2 and 3 of the sequential
evaluation process. The mental residual functional capacity
assessment used at steps 4 and 5 of the sequential evaluation process
requires a more detailed assessment. The following residual
functional capacity assessment reflects the degree of limitation the
undersigned has found in the “paragraph B” mental function analysis.
(AR 26.)
It is true that the analysis of mental impairments at Step Four is not superfluous.
The adjudicator must remember that the limitations identified in the
“paragraph B” and “paragraph C” criteria are not an RFC assessment
but are used to rate the severity of mental impairment(s) at steps 2
and 3 of the sequential evaluation process. The mental RFC
assessment used at steps 4 and 5 of the sequential evaluation process
requires a more detailed assessment by itemizing various functions
contained in the broad categories found in paragraphs B and C of the
adult mental disorders listings in 12.00 of the Listing of Impairments,
and summarized on the PRTF.
Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P
(S.S.A. July 2, 1996). But here the ALJ had already observed the very limited nature of
Plaintiff’s limitations. And, the ALJ was not required to beat the dead horse again at Step
Four. “When an ALJ performs the Paragraph B analysis and indicates the ‘degree of
limitation’ is incorporated into the RFC, this is sufficient to carry the burden imposed by
the Regulations.” Tyson v. Kijakazi, 2023 WL 2313192, at *5 (E.D. Cal. Mar. 1, 2023)
(detailing cases, and describing Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022) as
rejecting lower court decisions to the contrary). See also Virginia Estelle G. v. Comm'r of
Soc. Sec., 2022 WL 1404218, at *9 (S.D. Cal. May 4, 2022), report and recommendation
adopted, 2022 WL 11913046 (S.D. Cal. Oct. 20, 2022) (rejecting challenge that Step Two
assertion that RFC “reflects the degree of limitation” was just “boilerplate” as ignoring
Step Two evidentiary evaluation).
The conclusions in these cases reflects the differences in Step Two evaluations
between mental and physical impairments. For physical impairments, the evaluation is
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limited to determining whether or not the impairment is severe, i.e. whether it
“significantly limits your physical or mental ability to do basic work activities.” 20 C.F.R.
§ 404.1520(c). In contrast, the evaluation of mental impairments at Step Two requires the
agency to go beyond a simple dichotomous severe/nonsevere analysis and to instead “rate
the degree of functional limitation resulting,” 20 C.F.R. § 404.1520a(b)(2), in each of “four
broad functional areas,” § 404.1520a(c)(3), considering “all relevant evidence,” §
404.1520a(c)(1), evaluating each function on a variety of criteria, § 404.1520a(c)(2),
using a “five-point scale: None, mild, moderate, marked and extreme,” § 404.1520a(c)(4).
Thus, much of the types of evaluation done at Step Four for physical impairments has
already been performed at Step Two. Further, when the Agency designates a mental
impairment as nonsevere, it is not simply opining that it does not “significantly” limit work
activities, 20 C.F.R. § 404.1520(c), but is required to conclude that there is not “more than
a minimal limitation” on work activities, 20 C.F.R. § 1520a(d)(1).
Plaintiff argues that the Court cannot determine what the result would have been
had the ALJ again considered Plaintiff’s mental impairments at the RFC. But here, the
ALJ asserted he had considered them, and that they were reflected in his RFC, i.e. that
there were no functional limitations. And Plaintiff points to no authority that such analysis
had to be separately detailed in the RFC section. Section 1520a(e)(4) does not require any
explicit analysis be within the RFC portion of the decision, only within the decision.
Discussion at Step Four - Moreover, the ALJ revisited the mental impairments in
his discussion of the RFC at Step Four, including discussing Plaintiff’s symptoms, the
medical opinions, the VA disability rating, and nonmedical sources. The ALJ repeatedly
referenced the limited nature of the restrictions on Plaintiff, e.g. “nonsevere,” “normal,”
“mild,” “no limitations.” (AR 32-33.)
Regulations Don’t Require More - Moreover, it is only when severe impairments
have been found at Step Two (but no mental impairment disability found under the
Listings) that an RFC analysis on the mental impairments is required. “If we find that
you have a severe mental impairment(s) that neither meets nor is equivalent in severity
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to any listing, we will then assess your residual functional capacity.” 20 C.F.R. §
404.1520a(d)(3) (emphasis added). See Nethercutt v. Comm'r of Soc. Sec. 2023 WL
2541790, at *4 (E.D. Cal. Mar. 16, 2023), report and recommendation adopted, 2023 WL
2815591 (E.D. Cal. Apr. 6, 2023) (“claimant's mental residual functional capacity is only
assessed in light of mental impairments found to be severe”). While there are circuit court
authorities relying on 20 C.F.R. § 404.1545(a)(2) for the proposition that consideration of
non-severe mental impairments is required in determining RFC, the undersigned has not
identified any such decisions analyzing the import of § 404.1520a(d)(3). See e.g. Wells v.
Colvin, 727 F.3d 1061 (10th Cir. 2013). Cf. Quiala v. Comm'r of Soc. Sec. Admin., No.
CV-20-01593-PHX-DJH, 2022 WL 420646 (D. Ariz. Feb. 11, 2022) (quoting §
404.1520a(d)(3), but nonetheless, and without explanation, reversing based on lack of
RFC analysis of non-severe impairments). The more specific direction in §
404.1520a(d)(3) (relating specifically to mental impairments) controls over the general
direction in § 404.1545(a)(2) (relating generally to “medically determinable
impairments”). See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (“it
is a commonplace of statutory construction that the specific governs the general”).
Moreover, § 404.1545(a)(2) describes “impairments that are not ‘severe’” by reference to
“§§ 404.1520(c), 404.1521, and 404.1523.” These provisions: (1) mandate a severe
impairment, § 404.1520(c); (2) require impairments be medically determinable, §
404.1521; and (3) describe consideration of multiple non-severe impairments, § 404.1523.
No reference is made to § 404.1520a and its specific mandates regarding mental
impairments.
Plaintiff cites to unreported cases from the Ninth Circuit and district court cases
from other district courts in this circuit for the proposition that even nonsevere mental
impairments must be explicitly accounted for at Step Four. (OBrf. at 14.) The undersigned
is not convinced. In Hutton v. Astrue, 491 F. App'x 850 (9th Cir. 2012) (which predated
Woods) the Ninth Circuit engaged in no analysis of the more specific section,
404.1520a(d)(3). Similarly, the cited district court cases make no reference to the more
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specific section. See Alice M. v. Dudek, 2025 WL 899843 (S.D. Cal. Mar. 24, 2025);
Victor R. v. O'Malley, 2024 WL 1257277 (S.D. Cal. Mar. 25, 2024); Patricia C. v. Saul,
2020 WL 4596757 (S.D. Cal. Aug. 11, 2020), report and recommendation adopted sub
nom. Craig v. Saul, 2020 WL 5423887 (S.D. Cal. Sept. 10, 2020); Mercado v. O'Malley,
2024 WL 967619 (E.D. Cal. Mar. 6, 2024); Fortunato v. O'Malley, 2024 WL 1179966
(E.D. Cal. Mar. 19, 2024).
The undersigned has identified no error with regard to the ALJ’s handling of
Plaintiff’s mental impairments.
E. AVAILABLE JOBS
Finally, Plaintiff asserts that the ALJ erred at Step 5 by failing to adequately identify
available jobs. The ALJ accepted the testimony of the vocational expert (VE) that a person
with Plaintiff’s RFC could perform:
the requirements of representative sedentary occupations such as
ticket checker (DOT 219.587-010), of which there are
approximately 12,000 such jobs available in the national economy;
telephone quotation clerk (DOT 237.367-046), 9,000 nationally,
and document preparer (DOT 249.587-010), 22,000 nationally. The
undersigned notes that this combination of jobs totals 43,000, which
the undersigned finds to represent a significant number of jobs in the
national economy.
(AR 36.)
1. Waiver
Respondents argue that Plaintiff waived any challenge to jobs number evidence by
failing to raise the matter at the administrative level. (Answer at 6-7.) Plaintiff does not
assert he raised the issues administratively. Rather Plaintiff argues that recent authority
restricts waiver to situations where the claimant relies on new evidence. (Reply at 8 (citing
O’Brien v. Bisignano, 142 F.4th 687 (9th Cir. 2025)).)
In O’Brien, the Ninth Circuit observed that the administrative exhaustion statutorily
required is SSA cases does not require issue exhaustion. 142 F.4th at 695. Thus, any
exhaustion requirement was judicially imposed, and in light of the informal and
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inquisitorial nature of SSA proceedings, circumscribed to issues on which the claimant
was expected to develop evidence. The Ninth Circuit left intact its precedent that for such
issues, “claimants generally may not present new evidence, and new issues dependent on
that evidence, that they failed to present to the ALJ.” Id. at 701. Conversely, where an
ALJ failed to develop evidence to support a finding, the interest driving judicial exhaustion
did not apply.
As discussed hereinafter, the ALJ’s decision reflects that the agency’s evidentiary
burden was met on the things Plaintiff challenges from Step Five. However, as discussed
hereinafter Plaintiff’s claims do not depend on new evidence. What makes them without
merit (lack of evidentiary support) also keeps them from being subject to waiver under
O’Brien.
2. Obsolescence of Document Preparer Job
Plaintiff first argues that the ALJ erred because the job of “document preparer”
relates to microfilm and thus is obsolete. However, the ALJ explained: “The vocational
expert confirmed that the job of document preparer is currently performed consistent with
the RFC, and that scanners are now used instead of microfiche.” (AR 36-37.) Plaintiff
argues, in essence, that the Court should ignore the expert testimony of the VE and instead
rely on findings in various court opinions that microfiche is obsolete, and therefore the job
of “document preparer” is obsolete.
According to the DOT, a document preparer:
Prepares documents, such as brochures, pamphlets, and catalogs, for
microfilming, using paper cutter, photocopying machine, rubber
stamps, and other work devices: Cuts documents into individual
pages of standard microfilming size and format when allowed by
margin space, using paper cutter or razor knife. Reproduces
document pages as necessary to improve clarity or to reduce one or
more pages into single page of standard microfilming size, using
photocopying machine. Stamps standard symbols on pages or inserts
instruction cards between pages of material.... Prepares cover sheet
and document folder for material and index card for company files
indicating information, such as firm name and address, product
category, and index code, to identify material. Inserts material to be
filmed in document folder and files folder for processing according
to index code and filming priority schedule.
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United States Department of Labor, Dictionary of Occupational Titles (1991), at §
248.587-018, available at https://www.dol.gov/agencies/oalj/topics/libraries/LIBDOT
(last accessed 11/21/25) (follow “Clerical and Sales Occupations: 245.362–010 to
272.357–018” hyperlink).
The applicable ruling provides:
In making disability determinations, we rely primarily on the DOT
(including its companion publication, the SCO) for information about
the requirements of work in the national economy.
* * *
Occupational evidence provided by a VE or VS generally should be
consistent with the occupational information supplied by the DOT.
When there is an apparent unresolved conflict between VE or VS
evidence and the DOT, the adjudicator must elicit a reasonable
explanation for the conflict before relying on the VE or VS4 evidence
to support a determination or decision about whether the claimant is
disabled…Neither the DOT nor the VE or VS evidence automatically
“trumps” when there is a conflict. The adjudicator must resolve the
conflict by determining if the explanation given by the VE or VS is
reasonable and provides a basis for relying on the VE or VS testimony
rather than on the DOT information.
Pol'y Interpretation Ruling : Titles II & XVI: Use of Vocational Expert & Vocational
Specialist Evidence, & Other Reliable Occupational Info. in Disability Decisions, SSR 00-
4P (S.S.A. Dec. 4, 2000).
Plaintiff provides no evidence or argument to impeach the ALJ’s resolution of the
apparent conflict by accepting the VE’s explanation that microfiche had been replaced by
digital scanning, and thus the job remained available. “Introduction of evidence of the
characteristics of specific jobs available in the local area through the testimony of a
vocational expert is appropriate, even though the job traits may vary from the way the job
title is classified in the DOT.” Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).
Plaintiff does point to findings in other cases to attempt to support the argument.
(OBrf. at 21.) Although dubious, the undersigned assumes arguendo that factual findings
from other cases are cognizable evidence. But see Hart v. Massanari, 266 F.3d 1155, 1174
(9th Cir. 2001) (precedent of one district court in a circuit does not bind other district
4 A “VS” is a “vocational specialist.” SSR 00-4p at *1.
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courts). However, none of the cases cited by Plaintiff resolve whether the substitution of
digital scans for microfilm preserves the “document preparer” job classification. In
Valdez v. Comm’r of Soc. Sec’y, 2023 WL 2636377 (E.D. Cal. March 24, 2023) the Court
noted the claimant argued two jobs were obsolete (including document preparer), and the
agency did not respond, but instead argued one of the other identified jobs (“escort driver”)
was sufficiently available to avoid disability. The court remanded for a determination
whether the limited jobs for escort driver was sufficient. The court did not consider, any
evidence that the job had not disappeared, but had only shifted to digital tools. See also
Cunningham v. Astrue, 360 Fed. App'x 606, 616 (6th Cir. 2010) (remanding for
reconsideration ; Marie A. v. Comm’r of Soc. Sec., 2024 WL 865824 (S.D. Ill. Feb. 29,
2024) (obsolete but no discussion of digital scanning); Jaret B. v. Comm’r of Soc. Sec.,
2024 WL 1014051 (W.D.N.Y. March 8, 2024) (same); Aguirre v. Kijakazi, 2023 WL
6467516 (S.D. Tex. Sept. 13, 2023) (same); Fields v. Comm’r of Soc. Sec’y, 2022 WL
1599437 (N.D. Miss. May 20, 2022) (same); Corey S. v. Comm’r of Soc. Sec., 2021 WL
2935917 (N.D.N.Y. Jul 13, 2021) (same); Hardy v. Comm'r. of Social Security, 2021 WL
2695354, at *3 (N.D. Miss. June 30, 2021) (same); and Zacharopoulos v. Saul, 516 F.
Supp. 3d 211, 222 and n. 6 (E.D.N.Y. Jan. 25, 2021) (discussing shift to digital scanning,
but not discussing whether it preserved the classification).5
Moreover, other courts in this circuit have found the document preparer occupation
intact, with digital scanning substituted for microfilming. See e.g. Dawn H. v. Berryhill,
2019 WL 281289, at *6 (D. Or. Jan. 22, 2019); Wyatt C. v. Comm'r, Soc. Sec. Admin.,
2018 WL 4600289, at *3 (D. Or. Sept. 22, 2018); Ronquillo v. Saul, 2021 WL 614637, at
*7 (E.D. Cal. Feb. 17, 2021); Angela D. S. v. O'Malley, 2024 WL 4487185, at *4 (D. Nev.
July 18, 2024), adopted, 2024 WL 4263234 (D. Nev. Sept. 20, 2024).
/ /
/ /
5 Plaintiff also cites. There, the court made no finding, but merely observed the VE
testified the document preparer job was obsolete.
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3. Significance and Regional Availability
On the assumption that the document preparer classification is obsolete, Plaintiff
argues that disability should have been found because the 21,000 jobs for “ticket checker”
and “telephone quotation clerk” were (according to the VE) available “nationally” but
there was no evidence of their availability locally or in several regions.
Plaintiff points to 20 C.F.R. § 2404.1560(c)(1), which provides, in pertinent part:
“Any other work (jobs) that you can adjust to must exist in significant numbers in the
national economy (either in the region where you live or in several regions in the country).”
Plaintiff argues that the ALJ was required to consider both regional and national numbers,
and failed to do so.
Plaintiff further argues that the ALJ made no finding that the 21,000 jobs available
in these two classifications (as opposed to the 43,000 jobs for all three classifications)
constituted “a significant number.” (OBrf. at 22-23.)
The Commissioner argues that the 21,000 jobs qualified as “a significant number,”
and that the ALJ was not required to break down the jobs numbers by region. (ABrf at 8-
9.)
Plaintiff replies that even if 21,000 jobs could have been found significant, the ALJ
failed to make such a finding, and that § 1560(c)(1) requires a determination of the regional
availability (i.e. either Plaintiff’s local region, or in “several” regions). (RBrf at 9-10.)
Significance of 21,000 Jobs - Because the undersigned concludes that the ALJ’s
reliance on the document preparer job classification was not improper, and thus the
number of available jobs was 43,000 rather than 21,000, the court need not address
Plaintiff’s argument based on the lack of a finding that 21,000 was a “significant” number.
Separate Findings – Plaintiff argues that the ALJ was required to explicitly make
two separate findings on jobs availability: one as to Plaintiff’s own region, and a second
as to several regions in the country. (RBrf at 9 (citing Tammy L. F. v. Berryhill, 2019 WL
286056 (W.D. Wash. Jan. 3, 2019), adopted 2019 WL 280069 (W.D. Wash. Jan. 22,
2019).) But the cited case reaches no such conclusion. To the contrary, the judge
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observed: “This [significance] determination may be based either on ‘regional jobs (the
region where a claimant resides)’ or jobs that exist ‘in several regions of the country
(national jobs).’” Id. at *2 (quoting ” Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012)).
At best, the judge concluded that a finding of 11,084 available jobs across various regions
was a borderline case, and there was not substantial evidence to support the conclusion
that it was sufficient, reasoning that cases finding significant availability below 25,000
jobs nationally also relied on a showing of a significant number of jobs in the Plaintiff’s
region. In contrast, here the number of jobs available to Plaintiff was 43,000.
Further, the referenced decision is not binding authority, and cited no binding
authority, only anecdotal evidence.
Finally, Beltran (quoted in the Tammy L. F. case) held:
The statute in question indicates that the “significant number of jobs”
can be either regional jobs (the region where a claimant resides) or in
several regions of the country (national jobs)…If we find either of the
two numbers “significant,” then we must uphold the ALJ's decision.
Beltran, 700 F.3d at 389–90. Thus, the ALJ need not make explicit findings as to both
prongs of the “national economy” standard.
Lack of Any Specific Finding - Under Plaintiff’s reasoning, 43,000 jobs (and
therefore also 21,000 jobs) would be “significant” only if all located in Plaintiff’s region,
or scattered amongst “several regions.” In other words, if the ALJ’s decision left the
possibility that the available jobs, no matter how many, were all located in only one region,
and it was not Plaintiff’s region, then disability would be shown.
Here, the ALJ made no explicit finding, and the VE offered no explicit testimony,
about where the available jobs were located, other than to say “in the national economy.”
(AR 36, 61.) However, both the ALJ and the VE should be presumed to use a term of art,
such as “in the national economy,” according to its well established meaning. Terry v.
Saul, 998 F.3d 1010, 1013 (9th Cir. 2021) (applying presumption that VE’s use of term of
art, in that case “medium work,” sufficiently conveyed the meaning ascribed by
regulations). That well established meaning of the phrase “in the national economy”
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should, in the absence of evidence to the contrary, be deemed to convey the meaning
ascribed in regulations, that is that the referenced jobs are available “either in the region
where [the claimant] live[s] or in several regions in the country.”6 20 C.F.R. §
404.1560(c)(1). Thus, the evidence and the finding by the ALJ must be deemed to be that
the referenced numbers of jobs were in Plaintiff’s region, or in several regions in the
country. Plaintiff proffers nothing to suggest that 43,000 jobs available in several regions
in the country or in Plaintiff’s region would not be a “significant number.”
The undersigned finds no reversible error on the available jobs determinations.
F. CONCLUSION
IT IS THEREFORE RECOMMENDED:
(A) The final decision of the Commissioner of Social Security be AFFIRMED.
(B) The Clerk be directed to enter judgment accordingly.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. Thereafter, the parties have
fourteen (14) days within which to file a response to the objections. Failure to timely file
objections to any findings or recommendations of the Magistrate Judge will be considered
a waiver of a party's right to de novo consideration of the issues, see United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver
6 A failure to differentiate between a specific region and several regions could become
determinative where the number of jobs was so limited as to be significant only if available
in Plaintiff’s region. See Beltran v. Astrue, 700 F.3d 386, 390 (9th Cir. 2012) (significance
of job numbers for single region can be at a lower number than where in several regions,
but depends on population and size of region).
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of a party's right to appellate review of the findings of fact in an order or judgment entered
pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143,
1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that
“[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation
issued by a Magistrate Judge shall not exceed ten (10) pages.”
Dated: December 8, 2025
25-8007r RR 25 10 08 re SSA Appeal.docx
James F. Metcalf
United States Magistrate Judge
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