Hefley v. Commissioner of Social Security Administration

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Tori Jade Hefley,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-25-00142-PHX-DWL
ORDER
Plaintiff challenges the denial of her application for benefits under the Social
Security Act (“the Act”) by the Commissioner of the Social Security Administration
(“Commissioner”). The Court has reviewed Plaintiff’s opening brief (Doc. 20), the
Commissioner’s answering brief (Doc. 22), and Plaintiff’s reply (Doc. 23), as well as the
Administrative Record (Docs. 12-19, “AR”), and now affirms the Administrative Law
Judge’s (“ALJ”) decision.
I. Procedural History
Plaintiff filed an application for benefits on January 27, 2020, alleging a disability
onset date of December 28, 2019. (AR at 174.) The Social Security Administration
(“SSA”) denied Plaintiff’s application at the initial and reconsideration levels. (Id.) On
March 30, 2022, following a telephonic hearing, the ALJ issued an unfavorable decision.
(Id. at 174-89.) However, in an April 28, 2023 order, the Appeals Council remanded to
the ALJ to “[o]btain additional evidence concerning the claimant’s impairments in order
to complete the administrative record in accordance with the regulatory standards regarding
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consultative examinations and existing medical evidence” and “[g]ive further
consideration to the claimant’s maximum residual functional capacity and provide
appropriate rationale with specific references to evidence of record in support of the
assessed limitations.” (Id. at 197-98.)
On January 25, 2024, following a post-remand online video hearing, the ALJ issued
another unfavorable decision. (Id. at 18-36.) The Appeals Council later denied review.
(Id. at 1-4.)
II. The Sequential Evaluation Process and Judicial Review
To determine whether a claimant is disabled for purposes of the Act, the ALJ
follows a five-step process. 20 C.F.R. § 416.920(a). The claimant bears the burden of
proof at the first four steps, but the burden shifts to the Commissioner at step five. Tackett
v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether
the claimant has engaged in substantial, gainful work activity. 20 C.F.R.
§ 416.920(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe”
medically determinable physical or mental impairment. Id. § 416.920(a)(4)(ii). At step
three, the ALJ considers whether the claimant’s impairment or combination of impairments
meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R.
Part 404. Id. § 416.920(a)(4)(iii). If so, the claimant is disabled. Id. If not, the ALJ
assesses the claimant’s residual functional capacity (“RFC”) and proceeds to step four,
where the ALJ determines whether the claimant is still capable of performing past relevant
work. Id. § 416.920(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where
the ALJ determines whether the claimant can perform any other work in the national
economy based on the claimant’s RFC, age, education, and work experience. Id.
§ 416.920(a)(4)(v). If not, the claimant is disabled. Id.
An ALJ’s factual findings “shall be conclusive if supported by substantial
evidence.” Biestek v. Berryhill, 587 U.S. 97, 102 (2019) (internal quotations omitted). The
Court may set aside the Commissioner’s disability determination only if it is not supported
by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th
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Cir. 2007). Substantial evidence is relevant evidence that a reasonable person might accept
as adequate to support a conclusion considering the record as a whole. Id. Generally,
“[w]here the evidence is susceptible to more than one rational interpretation, one of which
supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart,
278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). In determining whether to reverse
an ALJ’s decision, the district court reviews only those issues raised by the party
challenging the decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001).
III. The ALJ’s Decision
The ALJ concluded that Plaintiff had not engaged in substantial, gainful work
activity since the alleged onset date and that Plaintiff had the following severe impairments:
“degenerative disc disease; fibromyalgia; bilateral lower extremities edema; intracranial
hypertension; headaches; sarcoidosis; obesity; anxiety disorder; neurocognitive disorder;
and bipolar disorder.” (AR at 21.)1 Next, the ALJ concluded that Plaintiff’s impairments
did not meet or medically equal a listing. (Id. at 22-25.) Next, the ALJ calculated
Plaintiff’s RFC as follows:
[T]he claimant has the residual functional capacity to perform a range of light
work as defined in 20 CFR 404.1567(b). Specifically, she can lift and/or
carry up to twenty pounds occasionally and lift and/or carry up to ten pounds
frequently; stand and/or walk for four hours in an eight-hour day and sit for
six hours per eight-hour workday with normal breaks; engage in occasional
bilateral operation of foot controls; no climbing ladders, ropes, or scaffolds;
occasional climbing ramps or stairs; stooping; frequent crouching, crawling;
no balancing as defined by the Selected Characteristics of Occupations; she
can work with occasional exposure to excessive loud noise; occasional
exposure to excessive vibration; occasional concentrated exposure to
pulmonary irritants, such as fumes, odors, dust, and gases; occasional
concentrated exposure to poorly ventilated areas; no exposure to dangerous
moving machinery; no exposure to unprotected heights; no occupational
driving; she can perform work involving understanding, remembering and
carrying out simple instructions; work with occasional changes in a routine
work setting; and work with no specific production rate work, such as that
1 The ALJ also determined that Plaintiff had the non-severe impairments of
gastroesophageal reflux disease, pharyngoesophageal dysphagia, and palpitation. (AR at
21-22.)
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found on an assembly line.
(Id. at 25.)
As part of this RFC determination, the ALJ conducted an extensive evaluation of
Plaintiff’s symptom testimony, concluding that Plaintiff’s “statements concerning the
intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with
the medical evidence and other evidence in the record for the reasons explained in this
decision.” (Id. at 25-33.)
The ALJ also evaluated opinion evidence from various medical sources, concluding
as follows: (1) Krishna Mallik, state agency medical consultant (“not fully persuasive”);
(2) Q. Nguyen, M.D., state agency medical consultant on reconsideration (“not fully
persuasive”); (3) Scott F. Kaper, Ph.D., state agency mental health consultant (“partially
persuasive”); and (4) Anna Titus, Ph.D., state agency mental health consultant (“partially
persuasive”). (Id. at 33-34.)
Based on the testimony of a vocational expert (“VE”), the ALJ concluded that
although Plaintiff was incapable of performing her past work as a baker and material
handler, she was capable of performing three other jobs that exist in significant numbers in
the national economy: (1) mail sorter; (2) office helper; and (3) retail marker. (Id. at 34-
35.) Thus, the ALJ concluded that Plaintiff is not disabled. (Id. at 35-36.)
IV. Discussion
Plaintiff raises two issues on appeal: (1) whether “[t]he ALJ erred by failing to
properly assess Plaintiff’s headache impairment pursuant to Social Security Ruling 19-4p
and under Listing 11.02B”; and (2) whether “[t]he ALJ erred by omitting off-task behavior
and absenteeism from the assigned residual functional capacity.” (Doc. 20 at 5-12.) As a
remedy, Plaintiff seeks a “remand . . . for further proceedings, including a clarification and
redetermination of the claimant’s RFC that is consistent with the entire record.” (Id. at 12.)
A. Headache Impairment
1. The ALJ’s Analysis
As noted, the ALJ determined during step three of the sequential analysis that
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Plaintiff’s impairments did not meet or medically equal a listing. (AR at 22-25.) As part
of that determination, the ALJ individually analyzed Plaintiff’s degenerative disc disease,
sarcoidosis, fibromyalgia, headaches, obesity, and mental impairments. (Id.) With respect
to Plaintiff’s headaches, the ALJ’s analysis was as follows:
Because there is no listing specific to the evaluation of headaches or
intracranial hypertension, the undersigned must determine whether the
claimant’s headaches medically equals the most closely analogous listing.
SSR 19-4p recognizes that primary headache disorders are closely analogous
to the criteria for dyscognitive seizures under listing 11.02, epilepsy. Listing
11.00H defines dyscognitive seizures as seizures characterized by alteration
of consciousness without convulsions or loss of muscle control, and which
may result in blank staring, change of facial expression, and automatisms.
Listing 11.02B requires a history of dyscognitive seizures occurring either at
least once a week for at least three consecutive months despite adherence to
prescribed treatment. Listing 11.02D requires evidence of dyscognitive
seizures occurring at least once every two weeks for at least three consecutive
months despite adherence to prescribed treatment, as well as a marked
limitation in either physical functioning; understanding, remembering, or
applying information; interacting with others; concentrating, persisting, and
maintaining pace; or adapting or managing oneself. However, the evidence
does not establish that the claimant’s headaches and intracranial hypertension
occurred with the frequency or caused the level of limitation necessary to
equal this listing. Nor has an acceptable medical source so opined.
Accordingly, the undersigned finds that the claimant’s headaches are not of
equal medical significance to the criteria of this listing.
(Id. at 23.)
Additionally, in a later portion of the decision addressing the persuasiveness of
Plaintiff’s symptom testimony, the ALJ provided the following discussion regarding
Plaintiff’s headaches:
The undersigned also has considered the claimant’s intracranial hypertension
status post surgical placement of a VP shunt in her brain as well as headaches.
Limitations are warranted to preclude lifting and carrying heavy weights,
avoid hazards and heights in case dizziness might cause jeopardy in these
dangerous situations. The claimant must also avoid pulmonary irritants and
loud noises that could potentially trigger a headache. Additional limitations
are not supported by the record, which shows the impairments to be well
managed generally with a few exacerbations timely resolving with
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adjustments in treatment. In addition, imaging confirmed the stability of the
impairments. Considering the fluctuations of the impairment as it was
treated over the course of the relevant period, the claimant reported that her
headaches had resolved in October 2019 and she only had issues when she
overdid activity. In December 2019, the claimant reported that her headaches
were not as bad. The following month, it was reported that the claimant’s
VP shunt looked fine, and she was having severe headaches two times a
week. In June 2020, the claimant reported that her headaches were doing
well overall. In January 2021, the claimant was noted to have a stable MRI
with normal small ventricles and good positions of the cisternal catheter. At
this visit, the claimant’s shunt was reprogrammed. In May 2021, the
claimant’s intracranial hypertension appeared well-controlled and her
topiramate was increased. Imaging of the head was unremarkable. Imaging
of the neck revealed V3-V4 junctions that were not well-demonstrated, and
an otherwise unremarkable MRA. In July 2021, the claimant reported
experiencing fifteen to twenty headaches per month of the type that started
in her right and radiated to the right occiput and headaches occurring every
two to three days of the thunderclap variety, and in August 2021, the claimant
had her shunt adjusted, she had nonfocal examination, she was continued on
topiramate, and she had a thunderclap headache that was resolved. The
claimant denied headaches or dizziness in September 2021 and in January
2022. In June 2022, the claimant reported her headaches had improved,
although headaches were poorly controlled in September 2022, and she was
switched to new medication. The claimant denied headaches or dizziness in
January 2023. As for visual issues, although the claimant’s left eye showed
subtle VF depression and mild optic disc edema in the right eye in June 2022,
significant vision changes were typically denied or not found. The shunt was
adjusted and interrogated in June 2022. As the relevant period proceeded,
the claimant reported dizziness for only a day or two, and it thereafter
improved, and a full neurological physical examination was within normal
limits with no ataxia or nystagmus. Indeed, her videonystagmography
testing was within normal limits. In June 2023, the claimant denied dizziness
or headaches.
(Id. at 28-29.)
2. The Parties’ Arguments
Plaintiff contends that “[w]hile the ALJ purported to consider Plaintiff’s headache
impairment pursuant to SSR 19-4p, she failed to follow its specific guidance regarding the
applicability of listing 11.02 to the step three medical equivalence analysis.” (Doc. 20 at
6.) According to Plaintiff, “Listing 11.02B requires events that occur ‘at least once a week
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for at least 3 consecutive months . . . despite adherence to prescribed treatment’” and the
ALJ failed to provide any “analysis or citation when concluding that the evidence does not
establish that Plaintiff’s headaches occur with the required frequency,” even though “[t]he
evidence specifically supports multiple three-month periods where the plaintiff has
experienced headaches that occurred at least on a weekly basis.” (Id. at 6-9.)
In response, the Commissioner argues that the ALJ permissibly concluded that
Plaintiff failed to satisfy the frequency requirement because Plaintiff relied solely on
“subjective reports of headache symptoms from March 2020 to November 2023,” whereas
Listing 11.20(B) requires “a detailed description from an acceptable medical source of a
typical headache event.” (Doc. 22 at 4-5.) The Commissioner elaborates: “Plaintiff cites
her subjective responses on headache questionnaires, her subjective complaints of
headaches to treatment providers, and her subjective allegations at her hearing. However,
these sources reflect Plaintiff’s subjective symptom allegations—not objective medical
evidence. The regulations prohibit granting disability benefits solely on a claimant’s
subjective complaints, like Plaintiff has cited here. Thus, the ALJ reasonably did not rely
on Plaintiff’s allegations to find her condition medially equaled 11.02.” (Id. at 5, citations
omitted.) In the alternative, the Commissioner argues that “although Plaintiff points out
periods that she alleged experiencing frequent headaches, it is not clear from her statements
alone that her headaches met the criteria of 11.02B. Even if the ALJ had accepted the
alleged frequency of her headaches as true, Plaintiff has not shown that the severity of her
headaches over those periods was equivalent to dyscognitive seizures.” (Id. at 6.) Finally,
the Commissioner contends that “[t]o the extent that Plaintiff also contends that the ALJ
did not sufficiently explain her finding that Plaintiff’s headaches did not medically equal
the listing, this is also incorrect. While the ALJ did not provide a lengthy discussion of
headache-related evidence in the Step Three section, this discussion is not absent from the
opinion. It is simply in a different section. In the section of the decision explaining the
RFC, the ALJ discussed Plaintiff’s headaches and headache-related treatment at length and
explained why she discounted Plaintiff’s reports about the frequency and severity of her
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headaches. It was not erroneous for the ALJ to summarize this analysis at Step Three,
rather than restate it in full.” (Id.)
In reply, Plaintiff contends that the Commissioner’s arguments regarding “the
alleged lack of objective evidence in the record” lack merit because (1) “the ALJ did not
reject the application of SSR 19-4p for this reason”; (2) “evidence of record does contain
a detailed description of a headache event as observed by a treating physician despite
Defendant’s claims to the contrary”; and (3) SSR 19-4p does not require “objective”
evidence substantiating each claimed headache episode. (Doc. 23 at 2-3.)
3. Analysis
The Court finds no harmful error in the ALJ’s step-three analysis regarding
Plaintiff’s headaches. As an initial matter, the rule in the Ninth Circuit is that “[a]n ALJ
must evaluate the relevant evidence before concluding that a claimant’s impairments do
not meet or equal a listed impairment. A boilerplate finding is insufficient to support a
conclusion that a claimant’s impairment does not do so.” Lewis v. Apfel, 236 F.3d 503,
512 (9th Cir. 2001).2 This case does not involve a boilerplate finding. To the contrary, the
ALJ provided a detailed, standalone paragraph in the step-three section of the decision
explaining why Plaintiff’s headaches did not meet or medically equal “the most closely
analogous listing” and then provided a separate, lengthy paragraph in a later section of the
decision that addressed the frequency and severity of Plaintiff’s headaches. (AR at 23, 28-
29.) Based on that discussion, the ALJ ultimately concluded that “the evidence does not
establish that the claimant’s headaches and intracranial hypertension occurred with the
frequency or caused the level of limitation necessary to equal this listing. Nor has an
acceptable medical source so opined.” (AR at 23.)
2 In 2017, the SSA “promulgated a new Social Security Ruling . . . [that] states that
no explanation is required when finding a claimant does not meet or equal a listing.” Jerry
W. v. Comm’r of Soc. Sec., 2019 WL 7819645, *4 (W.D. Wash. 2019). Nevertheless. “the
Ninth Circuit has continued to uphold [its] finding in Lewis that ‘[a] boilerplate finding is
insufficient to support a conclusion’ that a claimant’s impairment does not meet or equal a
listing.” Id. (citations omitted). See also Breanne L. F. v. Comm’r of Soc. Sec., 2024 WL
3289606, *10 (W.D. Wash. 2024) (“Like the Ninth Circuit and other district courts that
have addressed the issue, this Court will continue to follow Ninth Circuit precedent
regarding boilerplate equivalency findings given that SSRs, while binding on ALJs, do not
carry the ‘force of law.’”).
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Although Plaintiff’s briefing focuses on the sufficiency of the ALJ’s finding as to
the frequency of her headaches (and, relatedly, on the form of evidence—objective versus
subjective—that must be proffered in this context), Plaintiff ignores that the ALJ identified
a separate and distinct reason for the adverse step-three determination—namely, that
Plaintiff’s headaches did not “cause[] the level of limitation necessary to equal” the
applicable listing. (AR at 23.) Plaintiff does not address (let alone challenge) this aspect
of the ALJ’s decision in the relevant portions of her opening brief (Doc. 20 at 5-9) or her
reply brief (Doc. 23 at 2-3), even though it was distinctly identified in the Commissioner’s
answering brief (Doc. 22 at 6) as an independent basis for affirmance. For this reason
alone, affirmance is warranted.
At any rate, Plaintiff has failed to establish that the ALJ’s “level of limitation”
finding was unsupported by substantial evidence. The chart appearing on pp. 6-8 of
Plaintiff’s opening brief only attempts to document the frequency of Plaintiff’s headaches,
and the few descriptions of those headaches appearing within the chart (e.g., “daily,” “bad,”
“worsening,” “minor,” “major,” “frequent,” “orthostatic,” “migraine,” “improved,”
“more,” “poorly controlled”) shed little light on their severity or the level of limitation they
caused. This sort of showing is insufficient in the step-three context, as “[t]he mere
existence of headaches is insufficient to meet that [SSR 19-4p] standard. In contrast,
having severe migraines that are accompanied by dizziness and fainting spells is sufficient
to require an ALJ to address whether those headaches are the medical equivalent of
dyscognitive seizures. Similarly, when a claimant has migraines that are so severe that
they keep the claimant from driving, from standing for long periods of time, and from
focusing the claimant’s eyes, then the headaches are the medical equivalent of Listing
11.02(B) dyscognitive seizures.” Mills v. O’Malley, 2024 WL 150292, *2 (E.D. Ky. 2024)
(citations omitted). See also McCabe v. Comm’r of Soc. Sec. Admin., 2023 WL 3080951,
*16-18 (D. Ariz. 2023) (“Although McCabe’s reports of her symptoms, as documented in
her treatment notes, indicate light sensitivity (photophobia), the vast majority of the
treatment notes indicate no aura or other visual disturbance, or alteration of awareness
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. . . . There is no doubt, per her physicians’ reports and clinical findings, that McCabe
suffered from headaches and migraines, but . . . [a]lthough McCabe reported photophobia
and occasionally vertigo, she did not report any other visual disturbances (such as aura),
and the vast majority of the treatment notes indicate the migraines were ‘without aura’ . . .
. Given the high bar for establishing medical equivalency to a listing, the ALJ’s conclusion
that McCabe’s migraines were not medically equivalent to a listed impairment was not
legal error or unsupported by the record evidence.”); Jennifer M. A. v. Saul, 2021 WL
1056426, *8 (D. Kan. 2021) (“Plaintiff has not shown that her headaches medically equal
the severity of Listing 11.02(B or D) (dyscognitive seizures) as required by SSR 19-4p.
The SSR . . . acknowledges it would be uncommon for a primary headache disorder (and
the court assumes Plaintiff has such a disorder) to be medically equivalent in severity to a
dyscognitive seizure. This is likely so because the regulations note, [d]yscognitive seizures
are characterized by alteration of consciousness without convulsions or loss of muscle
control. During the seizure, blank staring, change of facial expression, and automatisms
(such as lip smacking, chewing or swallowing, or repetitive simple actions, such as gestures
or verbal utterances) may occur. . . . Here, Plaintiff has not shown that her headaches are
equivalent in severity to an alteration of consciousness.”) (cleaned up).
B. RFC Formulation
1. The Parties’ Arguments
Plaintiff contends that, “due to the nature of the severe impairments in this case, and
the evidence detailing them, the ALJ should have incorporated a corresponding limitation
in the assigned RFC related to off task behavior (which would include extra breaks) as well
as absenteeism during exacerbation.” (Doc. 20 at 11.) According to Plaintiff, “[t]he ALJ
did not account for exacerbations in the decision, instead presenting a factually incorrect
picture of successfully treated conditions that only require minimal medication adjustments
at times.” (Id.) Plaintiff also notes that, during the final part of the hearing, the ALJ made
the oral statement “I was looking more towards worsening as of like May or April of 2022.
I think the record, since that time, she would’ve had difficulty working, would’ve been off
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task” and included, in one of the hypotheticals to the VE, “an individual who was off task
in a work setting 15% of the time.” (Id. at 11-12, citing AR 73, 76.) According to Plaintiff,
it was reversible error for the ALJ to fail to explain, in the written decision, why those
contemplated limitations were omitted from the RFC. (Id. at 12.) Plaintiff contends the
omission was not harmless “because the [VE] testified that an individual who is either off-
task 15% of the time or absent approximately two days per month would be precluded from
full-time employment.” (Id.)
In response, the Commissioner contends it was rational for the ALJ to omit any off-
task and absenteeism limitations from the RFC. (Doc. 22 at 7.) For example, the
Commissioner notes that the ALJ made various findings regarding Plaintiff’s improvement
from treatment, which findings tend to negate any “need for excessive absences or time off
task.” (Id. at 7-10.) The Commissioner also contends that it was reasonable for the ALJ
to conclude that Plaintiff’s “significant daily activities” were inconsistent with a need for
absences or time off. (Id. at 10.) Next, the Commissioner emphasizes that “no medical
opinion or prior administrative medical finding in the record suggested that Plaintiff
required excessive absences or time off task due to pain, fatigue, or other symptoms. Both
State agency medical consultants who reviewed Plaintiff’s record found that she could
perform a range of medium work with no mention of a need for time off task or absences.”
(Id.) Next, the Commissioner argues that Plaintiff cannot rely on her own subjective
testimony to establish the need for off-task and absenteeism limitations, particularly where
the ALJ did not fully accept her testimony. (Id. at 11.) Last, the Commissioner argues that
the ALJ’s oral statement during the hearing does not change the outcome because it was
not definitive and, in any event, “an ALJ’s statements at the hearing do not constitute a
final decision by the Commissioner. Rather, it is the ALJ’s hearing decision that is binding
on all parties.” (Id., citing 20 C.F.R. § 404.955.) The Commissioner concludes:
“[R]egardless of what implications might be gleaned by the ALJ’s oral statement, the
administrative record contains sufficient evidence to support her ultimate findings in the
decision. As such, substantial evidence supports the ALJ’s RFC assessment.” (Id. at 12.)
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In reply, Plaintiff contends that the record contains “several items of uncontroverted
evidence exhibiting [her] reduced functioning (which would necessarily cause[] absences
or required breaks), including ‘days down’ following infused treatment for her auto-
immune disease, required . . . breaks during physical therapy session to allow her symptoms
to calm down, reduced housework or no housework due to headaches at least 15 days out
of the month, required help from mother for showering, etc.” (Doc. 23 at 3-4.) Plaintiff
continues: “Because the plaintiff had alleged an[] inability to sustain regular employment
and the evidence of record supported the same, the ALJ was required to explain why she
rejected including absenteeism or off-task behavior due to pain, fatigue or the need for
extra breaks into the RFC. An ALJ’s failure to identify specific statements and explain
why they are not credible precludes meaningful review of the ALJ's reasoning . . . .” (Id.
at 5.) Next, Plaintiff “rejects the idea that her response to treatment for her headaches and
intracranial hypertension has eliminated exacerbations of these symptoms that lead to
decreased functioning” and also disputes the Commissioner’s arguments concerning her
daily activities, arguing that she “does not disagree that there are times when she is able to
accomplish tasks or accompany her family, but the law does not require that this very young
adult be utterly incapacitated in order to support her allegations.” (Id. at 5-7, cleaned up.)
Finally, as for the ALJ’s oral statement, Plaintiff criticizes the Commissioner for
attempting to “include[] a qualification of the statement that does not exist in the transcript”
and argues that “[i]n addition to the ample evidence corroborating the plaintiff’s allegations
that her symptoms often become severe enough to prevent her from engaging in work and
other activities on a regular basis, the plaintiff was entirely unable to function
independently for this several month period in 2022.” (Id. at 7-8.)
2. Analysis
“The ALJ assesses a claimant’s RFC based on all the relevant evidence in the case
record. The ALJ must consider both the medical evidence and descriptions and
observations of the claimant’s limitations from the claimant’s impairment(s), including
limitations that result from the claimant’s symptoms, such as pain, provided by the
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claimant, family, friends, and other people. The RFC assessment must contain a thorough
discussion and analysis of the objective medical and other evidence, including the
individual’s complaints of pain and other symptoms and the adjudicator’s personal
observations, if appropriate. In other words, the ALJ must take the claimant’s subjective
experiences of pain into account when determining the RFC.” Laborin v. Berryhill, 867
F.3d 1151, 1153 (9th Cir. 2017) (cleaned up). See also Vertigan v. Halter, 260 F.3d 1044,
1049 (9th Cir. 2001) (“[I]t is the responsibility of the ALJ, not the claimant’s physician, to
determine residual functional capacity.”). “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.” Biestek, 587 U.S. at 102.
It is the ALJ’s province to translate and incorporate medical findings into an RFC.
Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (citing Stubbs-
Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)). But “an RFC that fails to take
into account a claimant’s limitations is defective.” Valentine v. Comm’r Soc. Sec. Admin.,
574 F.3d 685, 690 (9th Cir. 2009). When the ALJ employs a VE to ascertain whether work
exists at step five, the ALJ’s hypothetical questions to that expert must set forth all of the
limitations supported by the record. Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir.
1989).
Applying these standards, Plaintiff has failed to establish that the ALJ committed
harmful error when formulating her RFC. Although Plaintiff contends her RFC should
have included off-task and absenteeism limitations, none of the medical sources who
provided opinions in this case indicated that such limitations were required. (AR 148-51
[Dr. Nguyen]; id. at 151-54 [Dr. Kaper]; id. at 165-66 [Dr. Mallik]; id. at 166-68 [Dr.
Titus].) The ALJ concluded that all of those medical sources’ opinions were at least
partially persuasive (id. at 33-34) and Plaintiff has not raised, in this appeal, any challenge
to the ALJ’s evaluation of the medical source opinion evidence. For that reason alone,
there is substantial evidence supporting the ALJ’s decision to omit any off-task and
absenteeism limitations from the RFC. Cf. Lechuga v. Comm’r of Soc. Sec. Admin., 2023
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WL 2534831, *4 (D. Ariz. 2023) (“The Court finds no harmful error in the ALJ’s RFC
formulation here. As an initial (and perhaps dispositive) matter, the ALJ followed the exact
process that the relevant authorities and regulations require ALJs to follow when making
an RFC determination—the ALJ expressly considered all of the medical opinions in the
record, as well as Plaintiff's subjective testimony regarding her symptoms and the
testimony of third-party witnesses regarding Plaintiff's symptoms, and provided reasons
for crediting or not crediting each of those evidentiary sources. The ALJ also explained
that the RFC was supported by the opinions of several medical sources whom the ALJ
deemed credible and persuasive. Plaintiff conspicuously does not challenge the ALJ’s
evaluation of those medical sources’ opinions or attempt to show that the RFC was
somehow inconsistent with their opinions.”).
Notwithstanding the medical sources’ unchallenged opinions, Plaintiff seeks to rely
on her own testimony as evidence establishing the need for off-task and absenteeism
limitations in the RFC. The problem with this approach is that the ALJ chose to discredit
Plaintiff’s testimony (and provided an extensive explanation for that decision, see AR at
25-33) and Plaintiff has not raised, as an assignment of error in this appeal, a challenge to
the ALJ’s evaluation of her testimony. In effect, Plaintiff is attempting to raise a backdoor
challenge on that issue by arguing—in the guise of a challenge to the RFC determination—
that the ALJ was required to accept certain aspects of her testimony as they relate to
absenteeism and off-task behavior. But this approach ignores that once the ALJ decided
to discredit Plaintiff’s testimony—a decision as to which Plaintiff has now forfeited any
challenge—the “ALJ could permissibly discount the entirety of” that testimony.
Hernandez v. Comm’r of Soc. Sec. Admin., 2025 WL 2502334, *4 (D. Ariz. 2025) (citations
omitted). Cf. Lechuga, 2023 WL 2534831 at *5 (“[T]he ALJ’s finding that Plaintiff’s
symptom testimony was not fully credible—which itself is free of harmful error, as
discussed in Part IV.B below—obviated the need for the ALJ to specifically explain, in the
portion of the decision formulating the RFC, each of Plaintiff’s claimed symptoms.”).
Finally, although the ALJ’s oral statement and hypothetical to the VE may suggest
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that the ALJ was considering, during the hearing, whether to include off-task and
absenteeism limitations from the RFC, it doesn’t follow that the ALJ was required to
include those limitations in the final version of the RFC specified in the written decision
or provide an explanation for their absence. See, e.g., McCaskill v. Dep’t of Health &
Human Servs., 640 F. App’x 331, 335 (5th Cir. 2016) (“It is improper to characterize the
ALJ’s comment at the remand hearing as a finding of fact. . . . Not only should the written
decision control over the ALJ’s oral statement but here the record clearly shows this was a
premature impression because the ALJ subsequently issued a detailed written decision
based on all the record evidence.”); Smith v. Astrue, 2009 WL 4067393, *4 (E.D. Va. 2009)
(“[N]o authority mandates that an ALJ’s written decision must comport with the comments
previously made at the administrative hearing. Although the ALJ’s commentary during
the hearing was perhaps confusing or misleading, Plaintiff has not demonstrated any reason
why the oral statements, rather than the written decision, should be binding. In particular,
Plaintiff has failed to cite any statute, regulation, or case mandating that the ALJ’s
subsequent written decision must be consistent with prior oral statements. Indeed, the Code
of Federal Regulations . . . makes it clear that a written decision is the mechanism for the
ALJ to render his decision, absent the limited circumstances where an oral decision is
permissible. The Court thus finds that the ALJ’s statements on the record cannot disturb
the final written decision.”).
Accordingly,
IT IS ORDERED that the decision of the ALJ is affirmed. The Clerk shall enter
judgment accordingly and terminate this action.
Dated this 10th day of March, 2026.
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