McPhail v. Commissioner of Social Security Administration ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dawn McPhail, No. CV-20-00271-TUC-DCB (EJM) 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff, Dawn McPhail, seeks judicial review of a final decision by the 16 Commissioner of Social Security, pursuant to 42 U.S.C. § 405(g), that she is not disabled. 17 The Court remands this case to the ALJ for further administrative proceedings to reassess 18 Dr. Hatch’s opinion and continue the five-step sequential evaluation process. 19 On August 21, 2020, the case was referred to a Magistrate Judge for a Report and 20 Recommendation (R&R) regarding the merits of the Plaintiff’s claims, pursuant to LRCiv. 21 72 and 28 U.S.C. § 636(b)(1). (Order (Doc. 14)). On November 24, 2021, the Magistrate 22 Judge issued a R&R (Doc. 32) which concludes that the case should be remanded to the 23 ALJ for further development of the record because the ALJ failed to articulate specific and 24 legitimate reasons to discount the treating source opinion of Dr. Ray Hatch. The ALJ’s 25 error impacted her Residual Functional Capacity (RFC) assessment for the Plaintiff and 26 the hypotheticals posed to the Vocational Expert (VE), which resulted in her conclusion 27 the Plaintiff is not disabled. 28 1 The Commissioner objects to the Magistrate Judge’s findings and recommendation, 2 pursuant to 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Where a party files an objection, 3 the District Court makes a de novo determination upon the record specific to the objection, 4 Hunt v. Pliler, 336 F.3d 839, 844 (9th Cir. 2003) (citing Fed.R.Civ.P. 72(b)), meaning the 5 Court considers the matter anew, the same as if it had not been heard before and as if no 6 decision previously had been rendered, Ness v. Comm’r of Internal Revenue Service, 954 7 F.2d 1495, 1497 (9th Cir. 1992). This Court’s obligation is to arrive at its own independent 8 conclusion about those portions of the Magistrate Judge’s findings or recommendations to 9 which objections are made. United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 10 The R&R: Remand for further administrative proceedings 11 The Magistrate Judge reviewed the Commissioner’s five-step sequential process 12 evaluating Plaintiff’s claims of disability. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see 13 also Heckler v. Campbell, 461 U.S. 458, 460–462 (1983). Disabled means the inability to 14 do any substantial gainful activity by reason of any medically determinable physical or 15 mental impairment which can be expected to result in death, or which has lasted or can be 16 expected to last for a continuous period of not less than 12 months. 20 C.F.R. § 404.1505. 17 To establish disability the claimant bears the burden of showing she (1) is not 18 working; (2) has a physical or mental impairment that alone or together is severe; (3) the 19 impairment meets or equals the requirements of a listed impairment; and (4) the claimant’s 20 RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 21 416.920(a)(4). At step five, the burden shifts to the Commissioner to show that the claimant 22 has the RFC to perform other work that exists in substantial numbers in the national 23 economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner 24 conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step 25 process, she does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 26 Here, the Magistrate Judge concluded that the ALJ found the Plaintiff was not disabled at 27 step five based on her erroneous RFC assessment and hypotheticals given to the VE. 28 1 The ALJ found the Plaintiff suffers from severe physical and mental impairments: 2 degenerative disc disease of the lumbar and cervical spine, depressive disorder, anxiety 3 disorder, and post-traumatic stress disorder. Because the ALJ concluded that her severe 4 impairments did not meet the listed criteria, the ALJ had to determine the Plaintiff’s RFC 5 before completing the step four analysis that she could not perform past work, and 6 concluding at step five that the Plaintiff could perform other work, and therefore was not 7 disabled. The Magistrate Judge found error in the RFC, the VE hypotheticals, and the 8 nondisability determination based on both. 9 The ALJ classified the Plaintiffs past work as a security guard as light and 10 semiskilled and her work as a corrections officer as medium and semiskilled. Light work 11 involves lifting no more than 20 lbs., with frequent lifting or carrying of 10 lbs. and requires 12 a good deal of walking or standing, or when it involves sitting most of the time there is 13 some pushing and pulling of arm or leg controls. 14 The ALJ offered the hypotheticals to the VE, with those highlighted below that she 15 applied to establish the Plaintiff’s RFC, as follows: 16 1. Assume she is limited to the light exertional level of work and will be off-task less than 10 percent of the workday. The VE testified such a 17 person could do Plaintiff’s past work as a security guard and a corrections officer at the light level. 18 2. Add, a limitation from frequent interaction with others. The VE 19 testified such a person could not perform Plaintiff’s past work but could perform other jobs such as housekeeper, office helper, and parking lot 20 cashier. 21 3. Reduce the exertional level to sedentary, which means not lifting more than 10 pounds at a time and occasionally lifting or carrying articles like 22 docket files, ledgers, and small tools; involves sitting, with occasional walking and standing necessary in carrying out job duties. The VE testified 23 that such an individual could do the jobs of document preparer, table worker/inspector, and final assembler. 24 4. Add, a limitation of being off-task more than 10 percent of the workday. 25 The VE testified that there would be no work at any level. 26 On cross-examination, the VE testified that if a person was limited to no more than 27 2 hours standing or walking and no more than 3 hours sitting, it would eliminate all work 28 1 or if an individual was limited to no contact with the public or coworkers and would meet 2 with their supervisor or manager weekly, it would eliminate all work. 3 The Plaintiff challenged the Defendant’s decision denying her claim of disability 4 for four reasons: 1) the ALJ introduced ambiguity in the RFC finding that is not resolved 5 by VE testimony; 2) the ALJ failed to articulate specific and legitimate reasons to discount 6 the treating source statement of Dr. Ray Hatch; 3) the ALJ failed to articulate germane 7 reasons to discount the statement of treating N.P. Beth Newhouse; and 4) the ALJ failed to 8 articulate clear and convincing reasons to discount Plaintiff’s subjective symptom 9 testimony. The Commissioner responded that the ALJ properly evaluated Plaintiff’s 10 subjective symptom testimony by detailing the record, properly evaluated the medical 11 source opinion evidence, and reasonably determined Plaintiff’s RFC. Therefore, there is 12 no ambiguity between the ALJ’s RFC finding and the VE’s testimony. 13 The Magistrate Judge found that the ALJ failed to provide specific and legitimate 14 reasons to discount treating physician Dr. Hatch’s opinion, and this error impacted the 15 ALJ’s assessment of Plaintiff’s RFC and the hypotheticals posed to the VE. “Consequently, 16 the error was not harmless because it ultimately impacted the ALJ’s step five nondisability 17 finding.” (R&R (Doc. 32) at 16.) Without reaching all the arguments of error, the 18 Magistrate Judge recommended remanding the case for the Plaintiff’s subjective symptom 19 testimony to be reassessed in light of the record as a whole. 20 On June 26, 2017, Plaintiff’s treating physician, Dr. Hatch, prepared a Medical 21 Opinion Re: Ability to do Physical Activities form, which noted that he saw the Plaintiff 22 every 3 months for sacroiliitis, depression, and anxiety. “He opined Plaintiff could walk 23 ½ to 1 block, sit and stand for 15–30 minutes at a time and less than 2 hours total in an 8- 24 hour workday, needed to shift positions at will, and needed to take unscheduled breaks at 25 least every 30 minutes. Plaintiff could occasionally lift up to 10 pounds and had significant 26 limitations in repetitive reaching, handling, and fingering. She was likely to have good days 27 and bad days and would be absent from work more than twice a month.” (R&R (Doc. 32) 28 at 4) (emphasis added). 1 This conflicted with the state examining physician, Dr. Hassman, who examined the 2 Plaintiff earlier in the year, on February 8, 2017, and opined that the Plaintiff reported low 3 back pain, frequent diarrhea or constipation, anxiety, and depression. She had aching pain 4 in her back since injuring it in 2011 or 2012 but denied pain radiating down her legs or any 5 numbness, tingling, or weakness of the legs. Examination was generally normal with 6 minimal stiffness with kneeling, mild tenderness over the sacroiliac joints, and complaints 7 of pain at the end range of lumbar flexion when reaching for her toes. []” (R&R (Doc. 32) 8 at 8.) He noted “unremarkable physical exam of the lumbar spine with mild tenderness 9 over the sacroiliac joints” and concluded Plaintiff’s “conditions would not impose 10 limitations for 12 continuous months.” Id. 11 The Court adopts the record as stated by the Magistrate Judge (R&R (Doc. 32) at 2- 12 11), which supports the opinion of Dr. Hatch rather than Dr. Hassman because the record 13 in its entirety reflects that over time, especially from 2016 through 2018, the Plaintiff was 14 consistently and continually treated for lower back pain, including: prescription narcotic 15 pain medication which had to be increased in strength by 2018; referrals to pain 16 management specialists and physical therapy, and undergoing a lower back procedure and 17 ablation in 2018. While these treatments produced some relief, she at all times continued 18 to need treatment for lower back pain from her medical providers, first Dr. Hatch and later 19 Banner Health. Like their records, the physical therapy records reflect some improvement 20 at different times, but overall, no significant relief and that from early 2017 to 2018, her 21 condition deteriorated. (R&R (Doc. 32) at 5-6.) It is simply not true to state, as the ALJ 22 did, that there is no supporting evidence for Dr. Hatch’s opinion regarding the degree of 23 impairment related to Plaintiff’s degenerative disc disease. 24 While not relied on by the Magistrate Judge for recommending remand, the Court 25 notes that the ALJ likewise discounted the opinion given by Plaintiff’s treating mental 26 health provider, N.P. Newhouse, at CODAC. On July 3, 2017, she completed a Medical 27 Opinion Questionnaire (Mental Impairments) form, noting Plaintiff’s treatment at 28 CODAC, including her two interactions with Plaintiff for diagnostics and medication 1 management. In describing the Plaintiff’s diagnoses of major depressive disorder and 2 generalized anxiety disorder, N.P. Newhouse described anxiety as a long-term condition 3 and duration of the depressive disorder unknown. But see (Hatch treatment records (R&R 4 (Doc. 32 at 3 (8/26/16 describing excessive stress but ok from depression standpoint; 5 1/17/17 venlafaxine prescribed for depression; 3/17/17 reporting depression better and 6 venlafaxine continued). In July of 2017, N.P. Newhouse opined the following: 7 Plaintiff had “good” ability to adhere to basic standards of neatness and cleanliness, remember work-like procedures, understand, remember, and 8 carry out simple instructions, maintain attention for 2-hour segments, maintain regular attendance and be punctual, sustain an ordinary routine 9 without special supervision, make simple work-related decisions, and be aware of normal hazards. [] She had “fair,” meaning seriously limited but not 10 precluded, ability to interact appropriately with the public, maintain socially appropriate behavior, use public transportation, work in coordination or 11 proximity with others without being distracted, ask simple questions, accept instructions and respond to criticism, get along with co-workers or peers, deal 12 with normal work stress, understand, remember, and carry out detailed instructions, set realistic goals, and deal with the stress of skilled and semi- 13 skilled work. [] Her ability to travel in unfamiliar places, complete a normal workday and workweek without interruption from psychologically based 14 symptoms, perform at a consistent pace, and respond appropriately to changes in a routine work setting was “poor or none.” [] N.P. Newhouse 15 indicated that Plaintiff would be absent from work more than twice a month. 16 (Admin. Record (Doc. 20-10) at 120-122.) 17 The ALJ gave little weight to this opinion from Plaintiff’s treating practitioner 18 because the ALJ found it was inconsistent with the record. The ALJ relied on the 19 psychological consultative examiner Dr. Rohen’s opinion, which was that the Plaintiff had 20 a mild limitation sustaining concentration and persistence and interacting with others. The 21 ALJ gave this opinion significant weight because it was based on the administration of the 22 Mini Mental Status Exam. 23 The ALJ summarized the Plaintiff’s mental health record as showing: “other than 24 a short, acute increase in symptoms, that although the claimant reports she isolates herself 25 she is able to interact well with others and had sufficient concentration to perform well on 26 mental status exams. The ALJ’s reference to the “short acute increase in symptoms” refers 27 to Plaintiff’s attempted suicide and related hospitalization on April 6 through April 10, 28 2017, at University Medical Center and follow-up admission and treatment at Palo Verde 1 Behavioral health from April 10 to April 14, 2017. The ALJ’s conclusion ignores the 2 treatment records from both CODAC and Dr. Hatch reflecting Plaintiff’s long-term 3 treatment, including prescription medication, for depression and anxiety. 4 The Court notes that the opinions from both the consulting examining doctors, Dr. 5 Hassman and Dr. Rohen, were given in February 2017, which was before Plaintiff was 6 involved in a car accident in March, and subsequently treated for increased lower back pain 7 as reflected in the medical records for 2017-2018. Compare (Decision (Doc. 20-3) at 32 8 (citing Hassman exam as reflecting no reported tingling); (R&R (Doc. 32) at 5) 9 (referencing PT record reporting tingling), see same (Hassman record reflecting controlled 10 with medication); (referencing increased hydrocodone and referral to pain management). 11 Plaintiff’s treating physician, Dr. Hatch’s opinion was given on June 26, 2017. 12 Similarly, N.P Newhouse’s opinion was given July 3, 2017, after Plaintiff’s April suicide 13 attempt, hospitalization, inhouse treatment at Palo Verde Behavioral Health, and follow- 14 up treatment at CODAC, which formed the background for Newhouse’s treatment records. 15 The Magistrate Judge concluded that the ALJ “cherry picked” the record to 16 conclude it did not support the treating physician opinion from Dr. Hatch. See (R&R (Doc. 17 32) at 18) (citing Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (explaining the 18 ALJ may not manufacture a conflict between treating providers by cherry-picking the 19 evidence to support a finding of non-disability; see also Garrison v. Colvin, 759 F.3d 995, 20 1014 (9th Cir. 1989) (rejecting “germane reasons” for discounting practitioner’s opinion 21 because the ALJ manufactured a conflict by identifying a few reports of improvement and 22 then asserting, without considering totality of treatment records, that provider’s opinion 23 merited little weight). 24 Objections to the R&R 25 The Commissioner argues that after de novo review this Court must find there is 26 substantial evidence to support the ALJ's finding that the Plaintiff is not disabled. The ALJ 27 did not err in discounting Hatch’s opinion that the Plaintiff is disabled because it is 28 inconsistent with the record. “Notably,” Dr. Hatch’s list of Plaintiff’s impairments was 1 Sacralitis [sic], Depression and Anxiety, not degenerative disc disease of the cervical or 2 lumbar spine. The Commissioner’s objection does not explain the significance between the 3 two diagnoses. Google reflects sacroiliitis is a painful inflammation of the sacroiliac joint 4 (SI) and a common source of gluteal and lower back pain. The Court notes that the medical 5 records reflect administration of SI injections on 1/4/2016, 4/26/2016, 10/17/2016, 6 6/15/2017, 9/11/2017, and 12/13/2017. (R&R (Doc. 32) at 1-3.) 7 The Commissioner argues the ALJ correctly found that Dr. Hatch’s opinion was 8 unsupported by objective evidence- namely clinical and diagnostic findings in the record, 9 which is a valid reason for assigning less weight to a treating doctor’s opinion. See Bray 10 v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (explaining that an 11 ALJ can reasonably discount a treating physician’s opinion that is inadequately supported 12 by clinical findings) (citing Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)). 13 “Under the regulations, objective evidence consists of medical signs, and laboratory 14 findings, whereas “symptoms” are one’s own description of a physical or mental 15 impairment.” (Objection (Doc. 33) at 3 (citing 20 C.F.R. §§ 404.1512(b)(1), 404.1528(a), 16 (b)). 17 To prevail on this argument, the Commissioner must establish that Plaintiff’s 18 description of her symptoms was not entirely credible. When a claimant produces objective 19 medical evidence of an underlying impairment, an adjudicator may not reject a claimant's 20 subjective complaints based solely on a lack of objective medical evidence to fully 21 corroborate” the claimant's allegations. Lester, 81 F.3d at 834 (citing Bunnell v. Sullivan, 22 947 F.2d 341, 345 (9th Cir.1991)). “Unless there is affirmative evidence showing that the 23 claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony 24 must be ‘clear and convincing.’” Id. (quoting Swenson v. Sullivan, 876 F.2d 683, 687 (9th 25 Cir.1989)). It is not enough to make a general finding that the Plaintiff’s reported symptoms 26 are not credible. The ALJ must identify what symptom testimony is not credible and what 27 evidence undermines the claimant's complaints. Id. (citing Dodrill v. Shalala, 12 F.3d 915, 28 1 918 (9th Cir.1993); Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 2 (9th Cir.1988) (Varney I )). 3 In Bray, the ALJ found the claimant’s characterization of her symptoms unreliable. 4 In reaching a credibility determination, an ALJ may weigh inconsistencies between the 5 claimant's testimony and her conduct, daily activities, and work record, etc., among other 6 factors, which in Bray included smoking in the face of alleged debilitating shortness of 7 breath; she was able to lead an active lifestyle, including: cooking, cleaning, walking dogs, 8 driving to appointments, recent work as a care giver, and while she reported being wheezy 9 when engaging in heavy exertion she also reported her COPD was doing fine. 10 The part of Bray relevant to this Court’s review was the ALJ’s evaluation of 11 claimant’s treating physician’s opinion, which introduced a prescription of limited lifting, 12 standing or walking, and work activities to four hours per day, five days a week. The 13 treating physician’s prescription contrasted with the DDS physician evaluation that 14 claimant Bray was capable of doing much more. In Bray, the ALJ gave the treating 15 physician’s opinion “little weight” for several reasons, including that it was based on Bray's 16 subjective characterization of her symptoms. The Court found that because the ALJ 17 determined that Bray's description of her limitations was not entirely credible, it was 18 reasonable to discount the physician's prescription of limitations that was based on those 19 less than credible statements. Bray, 554 F.3d at 1226–29. 20 In this case, the ALJ discounted Plaintiff McPhail’s statements of impairment 21 symptoms relied on by Dr. Hatch because her testimony regarding her daily activities was 22 contrary to her asserted limitations. According to the ALJ, the Plaintiff’s testimony was 23 “that she remains independent in all daily activities, manages her own self-care and helps 24 care for her granddaughter []. The ALJ noted Plaintiff reported to consultative examiner 25 Noelle Rohen, Ph.D. that she does her own laundry, grocery shopping, manages money, 26 and is able to drive alone to do these things []. The Commissioner argues that, therefore, 27 the ALJ did discuss Dr. Hatch’s opinion regarding unscheduled breaks or absenteeism 28 because she rejected those limitations based on the record as a whole, and in particular, the 1 Plaintiff’s daily activities and statements made to Dr. Rohen.” (Objection (Doc. 33) at 4- 2 5.) The ALJ, accordingly, supported her finding that Plaintiff was able to sustain work 3 activity at a reduced level of light exertional work based on claimant’s self-reported daily 4 activities. 5 The suggestion that Plaintiff’s own testimony is contrary to Dr. Hatch’s opinions of 6 the Plaintiff’s limitations ignores Plaintiff’s testimony that she was able to take care of her 7 granddaughter as a baby but as the baby got older and heavier it was more difficult to lift 8 and hold her. The Plaintiff, who lives with her daughter, did not provide day care for her 9 granddaughter; the child went to a babysitter down the street. (TR (Doc. 20-3) at 72-73). 10 Likewise, the daily activities she testified she performed were not contrary to Dr. Hatch’s 11 opinions that she could not do synonymous work-like activities consistently over an 8-hour 12 workday without taking frequent breaks or having unscheduled absenteeism. Plaintiff 13 testimony was essentially that she helped when she could and is consistent with Dr. Hatch’s 14 opinion that she would likely have good days and bad days. Plaintiff’s daily activities are 15 not clear and convincing evidence that Plaintiff’s symptom testimony is not credible. 16 Therefore, the record taken as a whole is not contrary to Dr. Hatch’s conclusion that the 17 Plaintiff would have difficulty performing work activities over the course of the workday 18 without taking frequent breaks and would be absent from work more than twice a month. 19 Additionally, the Commissioner argues that the ALJ did address Dr. Hatch’s 20 assessment regarding time off task by including a limitation in the VE hypothetical and 21 corresponding RFC of less than 10% off task during an 8-hour day. (Objection (Doc. 33) 22 at 4-5.) It was Dr. Hatch’s opinion that Plaintiff could only sit and stand for 15–30 minutes 23 at a time and less than 2 hours total in an 8-hour workday, needed to shift positions at will, 24 needed to take unscheduled breaks at least every 30 minutes, and would be off work more 25 than twice a month. If this is considered an “off-task” assessment, it is more in keeping 26 with the VE hypothetical of “off task more than 10 percent of the workday,” which the ALJ 27 rejected. N.P. Newhouse’s opinion included what is more accurately described as a time- 28 off task assessment, which was: Plaintiff could maintain attention for 2-hour segments and 1 had poor to no ability to complete a normal workday and workweek without interruption 2 from psychologically based symptoms, perform at a consistent pace, and respond 3 appropriately to changes in a routine work setting, and would be absent from work more 4 than twice a month. 5 This Court’s de novo review of the record finds that the ALJ weighted opinion 6 evidence by whether it was supported by objective medical evidence. Plaintiff’s physical 7 examinations by her treating and nontreating examining doctors were generally described 8 as normal or unremarkable, but for the medically determinable physical impairment 9 degenerative disc disease of the lumbar and cervical spine. Weighting opinion evidence 10 more heavily when supported by this objective medical evidence of normalcy skewed the 11 record towards a finding of not disabled and runs the risk of violating the prohibition 12 against discounting symptom testimony once there is objective medical evidence of a 13 severe impairment, without finding by clear and convincing evidence that the Plaintiff is 14 not credible. 15 For example, the ALJ gave partial weight to Dr. Hassman’s opinion that Plaintiff 16 had no exertional limitations as inconsistent with the record showing degeneration in the 17 spine on objective imaging but found Dr. Hassman’s opinion that she has no sitting or 18 postural limitations consistent with it. Relying on Hassman’s opinion, the ALJ then gave 19 little weight to Dr. Hatch’s opinion of disability as being inconsistent with the record. 20 Similarly, the ALJ gave Dr. Rohn’s mental health opinion significant weight 21 because it was based on the administration of a mental health exam as compared to giving 22 little weight to treating N.P. Newhouse’s opinion, which was based on Plaintiff’s treatment 23 at CODAC in follow-up to her suicide attempt and history of anxiety and depression. 24 The Magistrate Judge is correct that Dr. Hatch’s opinion is only inconsistent with 25 the medical record to the extent the record is cherry-picked by the ALJ with an emphasis 26 on objective medical evidence. The ALJ ignored the general rule, that “‘more weight 27 should be given to the opinion of a treating source than to the opinion of doctors who do 28 not treat the claimant.’” (R&R (Doc. 32) at 16 (citing Garrison, 759 F.3d at 1012 (quoting 1 Lester, 81 F.3d at 830)). “‘Courts afford the medical opinions of treating physicians 2 superior weight because these physicians are in a better position to know plaintiffs as 3 individuals, and because the continuity of their treatment improves their ability to 4 understand and assess an individual’s medical concerns.’” Id. at 17 (quoting Potter v. 5 Colvin, 2015 WL 1966715, at *13 (N.D. Cal. Apr. 29, 2015)). 6 When the ALJ does not give a treating physician’s opinion controlling weight, the 7 ALJ must evaluate any medical opinion according to the requirements set out in 20 C.F.R. 8 § 404.1527(c), which assesses the treating relationship between the Plaintiff and her 9 practitioners. The Magistrate Judge correctly found the ALJ failed to determine the weight 10 to afford Dr. Hatch’s opinion, pursuant to this standard, which required her to consider: 11 (1) the frequency of examination and the length, nature, and extent of the treatment 12 relationship; (2) the evidence in support of the opinion; (3) the consistency of the opinion 13 and the record as a whole; (4) whether the doctor is a specialist; and (5) other factors that 14 would support or contradict the opinion. (R&R (Doc. 32) at 20.) “‘Generally, the longer a 15 treating source has treated [the claimant] and the more times [the claimant has] been seen 16 by a treating source, the more weight [the Commissioner] will give to the source’s medical 17 opinion.”” Id. (quoting 20 C.F.R. § 404.1527(c)(2)(i)). The Court agrees with the 18 Magistrate Judge that the record reflects Plaintiff’s treatment by Dr. Hatch from 2011 to 19 2017 had these earmarks for weighting his opinion as a better assessment of Plaintiff’s 20 conditions and functional limitations than examining state agency physicians who never 21 treated her. 22 Conclusion 23 The Court agrees that the ALJ erred by failing to set forth specific and legitimate 24 reasons supported by substantial evidence to assign little weight to Dr. Hatch’s opinion and 25 failed to address the factors set out in 20 C.F.R. § 404.1527(c), particularly the frequency 26 of examination and the length, nature, and extent of the treatment relationship. “‘This error 27 is not harmless because it affected the ALJ’s RFC assessment and the ultimate 28 nondisability finding at step five.’” (R&R (Doc. 32) at 20.) Accordingly, the Court adopts □□ the Magistrate Judge’s recommendation that this matter should be remanded for further 2|| administrative proceedings to continue the five-step sequential evaluation process, 3|| including reassessing Dr. Hatch’s opinion and properly weighting opinion evidence 4|| between treating and nontreating practitioners, and assessing Plaintiffs residual functional 5 || capacity based on the record as a whole. 6 Accordingly, 7 IT IS ORDERED that the Report and Recommendation (Doc. 32) is adopted by 8 || the Court as its findings of fact and conclusions of law. 9 IT IS FURTHER ORDERED that this matter is remanded to the Commissioner || for further administrative proceedings in accordance with this Order. 11 IT IS FURTHER ORDERED that the Unopposed Motion to Extend the Time to 12|| file a Response/Reply to the Objection (Doc. 34) is GRANTED, accordingly, the 13} Response/Reply filed on January 3, 2022, is timely. 14 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment 15 || accordingly. 16 Dated this 28th day of February, 2022. 17 18 20 Honorable David C. But 21 United StatesPrstrict Judge 22 23 24 25 26 27 28 -13-