NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICOLE DESIREE DUNN, 

Plaintiff-Appellant, 

 v. 

MARTIN J. O'MALLEY, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 23-55707 

D.C. No. 5:23-cv-00312-BFM 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Brianna Fuller Mircheff, Magistrate Judge, Presiding

Submitted July 12, 2024**

Pasadena, California

Before: IKUTA and NGUYEN, Circuit Judges, and ANELLO,*** District Judge.

Nicole Desiree Dunn appeals the district court’s order and judgment 

affirming the Commissioner of Social Security’s denial of disability insurance 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Michael M. Anello, United States District Judge for 

the Southern District of California, sitting by designation.

FILED

JUL 17 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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benefits and supplemental security income. “We review a district court’s judgment 

upholding the denial of social security benefits de novo” and “set aside a denial of 

benefits only if it is not supported by substantial evidence or is based on legal 

error.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) 

(internal quotation mark and citation omitted).

To establish a disability for purposes of the Social Security Act, a claimant 

must prove that she is unable “to engage in any substantial gainful activity by 

reason of any medically determinable physical or mental impairment . . . which has 

lasted or can be expected to last for a continuous period of not less than 12 

months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). “In order to determine 

whether a claimant meets this definition,” the Administrative Law Judge (“ALJ”) 

“employs a five-step sequential evaluation.” Molina v. Astrue, 674 F.3d 1104, 

1110 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a).

Here, the ALJ found Dunn not disabled because there were jobs that existed 

in significant numbers in the national economy that she could perform based on her

age, education, work experience, and residual functional capacity (“RFC”). The 

ALJ determined Dunn’s RFC was limited to understanding and carrying out 

“simple instructions” that were “consistent with reasoning level one or two.” This 

finding was supported by substantial evidence. 
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First, Dunn contends that the ALJ erred in assessing the findings of the two

state agency psychological consultants, and that this error was harmful because it 

resulted in an RFC that did not account for all of her limitations. Specifically, 

Dunn asserts that because the state agency doctors opined that she was “capable of 

carrying out simple one[-] to two[-]step (unskilled) tasks,” the RFC finding that 

Dunn could understand and carry out “simple instructions” was error. Contrary to 

Dunn’s assertions, the state agency doctors did not clearly limit her to only one- to 

two-step tasks. Instead, both doctors also found Dunn capable of performing 

unskilled work and simple tasks that she could sustain for a 40-hour work week, 

adapting to changes, interacting with others, and maintaining concentration, 

persistence and pace throughout a normal workday as related to simple unskilled 

tasks. 

The ALJ’s interpretation of the state agency doctors’ conclusions is also 

consistent with the remainder of the record, which showed that although Dunn

struggled with a mood and learning disorder, she was able to finish high school and

maintain employment for roughly eight years as well as care for her newborn baby

as a stay-at-home mother. In addition, the record shows that Dunn was able to 

work a second part-time job as an Instacart driver without the need for outpatient 

mental health treatment or medication. Further, although it appeared that her mood 

symptoms worsened with the birth of her child, the record shows that medication 
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was beneficial in managing her symptoms. Therefore, substantial evidence

supported the ALJ’s RFC assessment. 

Next, Dunn argues the “ALJ did not separately address, criticize, or state

reasons for rejecting [the state agency doctors’] limitation on one[-] to two[-]step

(unskilled) tasks.” Although the ALJ was required to explain why “significant 

probative evidence has been rejected,” Vincent ex rel. Vincent, 739 F.2d 1393, 

1395 (9th Cir. 1984) (per curiam) (internal quotation marks and citation omitted), 

here, the ALJ did not reject the state agency doctors’ opinions; she resolved a 

conflict in their testimony. As noted above, the state agency doctors did not opine 

that Dunn could only perform one- to two-step tasks. Instead, the doctors wrote 

that Dunn could perform one- to two-step tasks and simple tasks, which is entirely 

consistent with the RFC. Because the doctors opined that Dunn could perform

both kinds of tasks, the ALJ’s decision to adopt the broader limitation was

reasonable. See 20 C.F.R. §§ 404.1545(a), 416.945(a) (noting an RFC represents

the most a claimant can do, not the least). Therefore, “the ALJ’s conclusion must 

be upheld.” Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022) (quoting Burch 

v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). 

Finally, as noted by the district court, Dunn asserts that “the ALJ should 

have placed more stock” in the state agency doctors’ finding that Dunn “is capable 

of carrying out simple one[-] to two[-]step (unskilled) tasks” based on where their 
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findings for simple work appeared in their assessments. On appeal, Dunn argues 

that based on the Social Security Administration’s Program Operations Manual 

System (“POMS”) DI 24510.060 § B, the state agency doctors were required to 

record Dunn’s mental RFC “in section III of the assessment in a narrative format” 

and that the “statements in section I referring to simple work are a mere 

worksheet.” Dunn’s argument is meritless. The three-section form that POMS DI 

24510.060 § B refers to is Special Form SSA-4734-F4-SUP. This is not the form

that the state agency doctors used. Instead, the doctors used a “disability

determination explanation” that is identical in substance to Special Form SSA4734-F4-SUP but different in form. In the disability determination explanation, 

the mental RFC comes at the end of each of the four functional areas rather than at 

the end of the entire assessment as in Special Form SSA-4734-F4-SUP. Therefore, 

the ALJ did in fact address the narrative portions of the state agency doctors’ RFC 

assessments.

Accordingly, the district court’s order is AFFIRMED.