Quintero v. Commissioner of Social Security Administration ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Jacqul line Michelle Quintero, ) No. CV-22-00853-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Commissioner of Social Security ) 12 Administration, ) 13 ) ) 14 Defendant. ) 15 Plaintiff Jacqulline Michelle Quintero (“Plaintiff”) seeks judicial review of the 16 denial of her application for disability insurance benefits under the Social Security Act, 42 17 U.S.C. § 405(g). Before the Court are Plaintiff’s Opening Brief (Doc. 12), Defendant 18 Commissioner of Social Security Administration’s (“Defendant”) Response Brief 19 (Doc. 16), and Plaintiff’s Reply Brief (Doc. 17). Upon review, the Court reverses the 20 Administrative Law Judge’s (“ALJ”) decision (AR1 at 21–42) and remands for further 21 proceedings. 22 I. BACKGROUND 23 On July 30, 2019, Plaintiff filed a Title II application for disability insurance 24 benefits, alleging a period of disability beginning on December 28, 2018. (AR at 24). Her 25 claim was initially denied on December 4, 2019, and again upon reconsideration on April 26 16, 2020. (Id.). Plaintiff testified at a telephonic administrative hearing on February 10, 27 28 1 Administrative Record (see Doc. 11). 1 2021 (AR at 47–72), after which the ALJ found Plaintiff was not disabled from December 2 28, 2018 through April 13, 2021 (AR at 42). In making this finding, the ALJ concluded 3 that Plaintiff passed the first three steps in demonstrating a disability: (i) Plaintiff has not 4 engaged in substantial gainful activity since the alleged onset date (AR 27); (ii) Plaintiff 5 has two “severe” medically determinable impairments (degenerative disc disease and 6 obesity) (AR 27); and (iii) Plaintiff does not have an impairment or combination of 7 impairments that meets or medically equals an impairment listed in the regulations, and 8 Plaintiff has the residual functional capacity (“RFC”) to perform light work with a few 9 specific exceptions (AR 27–28). At step four of the analysis, the ALJ found that Plaintiff 10 is capable of performing past relevant work and is therefore not disabled. (AR 41–42). 11 On March 30, 2022, the Appeals Council denied Plaintiff’s request for review and 12 adopted the ALJ’s decision as the agency’s final decision. (AR at 1). On May 17, 2022, 13 Plaintiff timely filed this action for review of the ALJ’s decision. (Doc. 1). On August 12, 14 2022, the Court received the administrative record. (Doc. 11). On October 11, 2022, 15 Plaintiff filed her Opening Brief (Doc. 12). On December 8, 2022, Defendant filed its 16 Response Brief (Doc. 16). On December 15, 2022, Plaintiff filed her Reply Brief (Doc. 17 17). This Court has fully reviewed the parties’ briefing and the medical record and will 18 discuss the pertinent medical evidence in addressing the issues raised by the parties. 19 II. LEGAL STANDARD 20 A person is considered “disabled” for the purpose of receiving social security 21 benefits if they are unable to “engage in any substantial gainful activity by reason of any 22 medically determinable physical or mental impairment which can be expected to result in 23 death or which has lasted or can be expected to last for a continuous period of not less than 24 12 months.” 42 U.S.C. § 423(d)(1)(A). In determining whether to reverse an ALJ’s 25 decision, the district court reviews only those issues raised by the party challenging the 26 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set 27 aside the Commissioner’s disability determination only if it is not supported by substantial 28 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 1 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 2 to support a conclusion. Id. To determine whether substantial evidence supports a decision, 3 the Court must consider the record as a whole and may not affirm simply by isolating a 4 “specific quantum of supporting evidence.” Id. (citation omitted). Generally, “[w]here the 5 evidence is susceptible to more than one rational interpretation, one of which supports the 6 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 7 954 (9th Cir. 2002). 8 To determine whether a claimant is disabled for purposes of the Act, the ALJ 9 follows a five-step process. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 10 20 C.F.R. § 404.1520(a)). The claimant bears the burden of proof on the first four steps, 11 and the burden shifts to the Commissioner at step five. Id. At step one, the ALJ determines 12 whether the claimant is presently engaging in substantial gainful activity. 13 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 14 medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). At step three, 15 the ALJ considers whether the claimant’s impairment or combination of impairments meets 16 or medically equals an impairment listed in the regulations.2 § 404.1520(a)(4)(iii). If so, 17 the claimant is automatically found to be disabled. Id. If not, the ALJ determines the 18 claimant’s residual functional capacity (“RFC”). §§ 404.1520(e), 416.920(e). At step four, 19 the ALJ determines whether the claimant’s RFC precludes her from performing her past 20 relevant work. § 404.1520(a)(4)(iv). If so, the ALJ proceeds to the fifth and final step, 21 where they determine whether the claimant can perform any other work in the national 22 economy based on the claimant’s RFC, age, education, and work experience. 23 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 24 III. DISCUSSION 25 The first issue on this administrative appeal is whether the ALJ erred by finding the 26 medical opinions of treating primary care provider Sarah DeRubeis, FNP-C (“NP 27 2 The impairments “listed in the regulations” are found in Appendix 1 to Subpart P 28 of 20 C.F.R. Part 404. 1 DeRubeis”) and treating surgeon Randal Porter, M.D. (“Dr. Porter”) to be wholly or 2 partially unpersuasive. (Doc. 12 at 11). Plaintiff argues that the ALJ failed to meaningfully 3 address the supportability and consistency factors in explaining her decision to reject their 4 medical opinions and, as a result, failed to adequately explain her persuasiveness finding 5 with substantial evidence. (Id.). The second issue is whether the ALJ erred by rejecting 6 Plaintiff’s symptom testimony. (Id. at 19). Plaintiff argues that the ALJ rejected Plaintiff’s 7 symptom testimony without providing specific, clear, and convincing reasons supported 8 by substantial evidence from the record. (Id.). Plaintiff primarily requests that this case be 9 remanded for a calculation and award of benefits, but alternatively requests a remand for 10 further proceedings. (Id. at 25). Defendant argues that the Court should affirm the ALJ’s 11 decision because substantial evidence supports the ALJ’s decisions with respect to the 12 medical opinions and Plaintiff’s symptom testimony, and because the ALJ did not commit 13 any harmful error. (Doc. 16 at 2). If the Court were to find in Plaintiff’s favor, Defendant 14 argues that remand for calculation of benefits is not appropriate and requests that this 15 matter be remanded for further proceedings. (Id. at 13–15). 16 A. Medical Opinions 17 Under the relevant regulations, an ALJ is required to articulate her consideration of 18 each medical opinion, including how persuasive each opinion is according to several 19 enumerated factors, including (1) supportability, (2) consistency, (3) relationship with the 20 claimant, (4) specialization, and (5) other factors that “tend to support or contradict a 21 medical opinion or prior administrative medical finding.” 20 C.F.R. §§ 404.1520c(a)–(c), 22 416.920c(a)–(c). The most important factors in evaluating persuasiveness are the first two: 23 supportability and consistency. See §§ 404.1520c(a), 416.920c(a). In fact, consideration of 24 these factors is mandatory, as the ALJ must explain how he or she considered the 25 “supportability” and “consistency” factors for each medical source’s opinion. 26 § 404.1520c(b)(2). As to “supportability,” the regulations provide that “[t]he more relevant 27 the objective medical evidence and supporting explanations presented by a medical source 28 are to support his or her medical opinion(s) . . . the more persuasive the medical opinions 1 . . . will be.” § 404.1520c(c)(1). As to “consistency,” the regulations provide that “[t]he 2 more consistent a medical opinion(s) . . . is with the evidence from other medical sources 3 and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will 4 be.” § 404.1520c(c)(2). 5 1. NP DeRubeis 6 On February 2, 2021, NP DeRubeis completed two medical source statements 7 assessing Plaintiff’s physical capacities and workplace restrictions. (AR 2217–30). The 8 first addressed restrictions related to Plaintiff’s lumbar spine impairments (AR 2217–23) 9 and the second addressed restrictions related to Plaintiff’s cervical spine impairments (AR 10 2224–30). In the first medical source statement, NP DeRubeis began by noting that she had 11 been treating Plaintiff since July 2019. (AR 2218). She noted diagnoses of lumbar stenosis 12 and L5-S1 fusion. (Id.). With respect to clinical findings, laboratory and test results 13 showing Plaintiff’s impairments, NP DeRubeis identified pain, numbness, tingling, and an 14 MRI from six months prior. (Id.). NP DeRubeis found that Plaintiff’s impairments have 15 lasted or can be expected to last at least twelve months and she identified Plaintiff’s 16 symptoms as pain, fatigue, and weakness. (Id.). She further noted that the pain was 17 “achy/sharp [with] numbness [and] heaviness.” (Id.). NP DeRubeis then listed a number of 18 “positive objective signs” supporting her conclusions: reduced lumbar sacral range of 19 motion, abnormal gait, sensory loss, tenderness, muscle spasm, muscle weakness, weight 20 change, and impaired sleep. (AR 2219). She opined that emotional factors contribute to the 21 severity of Plaintiff’s symptoms and functional limitations, and listed anxiety as a side 22 effect of medications that may have implications on working. (Id.). NP DeRubeis 23 concluded that Plaintiff could not walk any city blocks without rest or severe pain, that she 24 could sit for only 30 minutes before needing to get up, that she could stand for only 20 25 minutes before needing to sit down or walk around, and that Plaintiff could only sit, stand, 26 or walk for less than two hours in an eight-hour workday. (Id.). She concluded that Plaintiff 27 was unable to work as a result of her limitations. (AR 2220–21). NP DeRubeis further 28 opined that Plaintiff could never lift or carry even less than ten pounds or climb ladders 1 and stairs. (AR 2221). She opined that Plaintiff could only rarely twist, stoop and bend, or 2 crouch and squat. (Id.). NP DeRubeis found that, during an eight-hour workday, Plaintiff 3 could use her fingers for fine manipulations 100 percent of the time, her arms to reach in 4 front of her body 75 percent of the time, her hands to grab, turn, and twist objects 50 percent 5 of the time, and her arms to reach overhead 50 percent of the time. (AR 2221–22). She 6 concluded that Plaintiff’s symptoms would interfere with Plaintiff’s attention and 7 concentration rendering her “off task” for 25 percent or more of the time during a typical 8 workday. (AR 2222). NP DeRubeis concluded that Plaintiff was incapable of even low 9 stress work because of poor focus and ongoing pain. (Id.). 10 In the second medical source statement, NP DeRubeis began by noting Plaintiff’s 11 diagnosis as cervical stenosis with chronic pain and paresthesia. (AR 2225). She noted 12 symptoms of bilateral upper extremity pain, weakness, paresthesia, muscle weakness, 13 chronic fatigue, sensory changes, lack of coordination, motor loss, and reduced grip 14 strength. (Id.). She opined that Plaintiff had significant limitations of motion, including 15 cervical ranges of motion of 15 percent extension, 15 percent flexion, 25 percent left and 16 right rotation, and 15 percent left and right lateral bending. (Id.). She noted that Plaintiff 17 had severe headache pain—specifically frontal achiness and pounding—associated with 18 the impairments of her cervical spine and that such headaches lasted one to two days and 19 occurred approximately three to four times per month. (AR 2226). She listed vertigo, 20 inability to concentrate, impaired sleep, and mood changes as symptoms associated with 21 the headaches. (Id.). NP DeRubeis listed dizziness and brain fogginess as medication side 22 effects expected to affect working. (Id.). As with her first medical source statement, NP 23 DeRubeis concluded that Plaintiff’s impairments were expected to last at least twelve 24 months and that emotional factors including anxiety affected Plaintiff’s symptoms, 25 functional limitations, and physical condition. (AR 2226–27). NP DeRubeis opined that 26 Plaintiff cannot walk city blocks, could sit or stand for only 30 minutes at a time, and that 27 she could only sit, stand or walk for less than two hours in an eight-hour workday. (AR 28 2227). She concluded that Plaintiff could never lift even less than ten pounds or climb 1 ladders and stairs, and that Plaintiff could only rarely twist, stoop and bend, or crouch and 2 squat. (AR 2229). She also concluded that Plaintiff could only occasionally look down 3 (i.e., sustained flexion of her neck), turn her head to the right or left, look up, or hold her 4 head in a static position. (Id.). NP DeRubeis made the same conclusions with respect to the 5 percentage of time in a typical day that Plaintiff could use her fingers for fine manipulations 6 (100 percent), her arms for reaching in front of her body (75 percent) and overhead (50 7 percent), and her hands for grasping, turning, and twisting objects (50 percent). (Id.). She 8 again opined that Plaintiff’s poor focus and ongoing pain left Plaintiff incapable of even 9 low stress work, that Plaintiff would be “off task” 25 percent or more of the time during a 10 typical workday because of attention and concentration issues, and that Plaintiff was 11 overall unable to work as a result of her impairments. (AR 2230). 12 In the decision, the ALJ found NP DeRubeis’ opinions in the two medical source 13 statements to be unpersuasive. (AR 40). The ALJ reasoned that the opinions were 14 “unsupported by [NP DeRubeis’] own physical examination findings” during two previous 15 examinations on September 3 and November 11, 2020. (Id.). The ALJ also found that the 16 opinions were “inconsistent with the medical evidence record” from a follow-up 17 examination that took place on December 15, 2020. (Id.). Aside from these three 18 examinations, the ALJ did not cite to any other evidence from the medical record. (Id.). 19 Plaintiff argues that the ALJ did not properly consider the supportability factor 20 prescribed in the regulations because the ALJ merely relied on “two isolated [treatment] 21 notes, one of which was completely unrelated to [Plaintiff]’s spinal impairments, and one 22 that was supportive of NP DeRubeis’[] assessments related to spinal impairments.” (Doc. 23 12 at 13–14 (emphasis in original)). Plaintiff argues that the ALJ did not explain how these 24 two isolated treatment notes failed to sufficiently support NP DeRubeis’ work-preclusive 25 assessments, which Plaintiff contends were supported by numerous other treatment notes 26 in the record. (Id. at 14–15). Plaintiff also argues that the ALJ did not properly consider 27 the consistency factor prescribed in the regulations because the only “inconsistent” 28 evidence that the ALJ cited to was the December 15, 2020 follow-up examination. (Id. at 1 15). Plaintiff contends that the December 15, 2020 examination actually supports NP 2 DeRubeis’ work-preclusive assessments when viewed as a whole and in the proper context, 3 which Plaintiff argues the ALJ failed to do. (Id.). Plaintiff argues that this single 4 examination fails to “provide a sufficient inconsistency supported by substantial evidence 5 to undermine the validity of NP DeRubeis’[] assessments.” (Id. at 16). 6 The Court finds the ALJ failed to adequately explain how she considered the 7 supportability and consistency factors. See Woods, 32 F.4th at 792 (alterations in original) 8 (citations omitted) (“The agency must ‘articulate . . . how persuasive’ it finds ‘all of the 9 medical opinions’ from each doctor or other source and ‘explain how [it] considered the 10 supportability and consistency factors’ in reaching these findings.”). Like in Woods, it 11 appears the ALJ here used the terms “supported” and “consistent” interchangeably, but 12 “supportability” and “consistency” are terms of art under the regulations. See id. at 793 n.4. 13 The Court finds that the ALJ’s consistency finding is not supported by substantial evidence, 14 and that the ALJ failed to make any meaningful finding at all with respect to the 15 supportability factor. 16 a. Consistency 17 Proper analysis of the consistency factor requires the ALJ to evaluate the extent to 18 which NP DeRubeis’ opinions are consistent with the medical or nonmedical evidence 19 elsewhere in the record. See 20 C.F.R. § 404.1520c(c)(2) (“The more consistent a medical 20 opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in 21 the claim, the more persuasive the medical opinion(s) . . . will be.”); see also Lewis v. 22 Comm’r of Soc. Sec. Admin., No. CV-21-00268-TUC-RCC (JR), 2022 WL 4008026, at *6 23 (D. Ariz. Sept. 2, 2022) (citing 20 C.F.R. § 404.1520c(c)(2)) (Whereas supportability 24 examines evidence presented by the source, “[c]onsistency examines the evidence from 25 other medical and nonmedical sources.”). In her decision, the ALJ cited to inconsistencies 26 between the findings made during three previous examinations in late 2020 and NP 27 DeRubeis’ February 2021 opinions in the two medical source statements. (See AR 40). 28 During a physical examination on September 3, 2020, NP DeRubeis found that 1 Plaintiff’s general appearance was “[n]ormal” and that she was “[h]ealthy, well nourished, 2 and in no apparent distress.” (AR 678). She noted that Plaintiff’s musculoskeletal 3 symptoms were “[n]ormal” and that her gait was “smooth with equal stride and [a] good 4 base of support.” (Id.). To an extent, these findings are inconsistent with NP DeRubeis’ 5 findings five months later—in the medical source statements—that Plaintiff was, among 6 other things, experiencing symptoms of pain, an abnormal gait, and reduced ranges of 7 motion. (See AR 2218–30). The significance of such inconsistencies, however, is at least 8 somewhat undermined by the fact that the September examination was for a general, 9 routine gynecological examination rather than being focused on Plaintiff’s lumbar or 10 cervical symptoms and impairments. 11 During a follow-up examination regarding menopause on November 11, 2020, NP 12 DeRubeis noted “[n]o impairments” with respect to Plaintiff’s functional and cognitive 13 status and that Plaintiff’s general appearance was “healthy and in no apparent distress.” 14 (AR 671). Again, to a certain extent, these findings are indeed inconsistent with NP 15 DeRubeis’ February 2021 medical source statements which noted numerous functional 16 impairments and symptoms of pain associated with her cervical and lumbar spine. (See AR 17 2218–30). As with the September examination, however, the significance of such 18 inconsistences is undermined by the purpose of the November follow-up examination. 19 Rather than being focused on Plaintiff’s lumbar and cervical impairments, the November 20 examination concerned menopause and Plaintiff’s inquiries into hormone replacement 21 therapy. (AR 669, 671). Moreover, the November examination included other findings that 22 are actually consistent with NP DeRubeis’ medical source statements. Specifically, NP 23 DRubeis noted “low back pain” and decreased lumbar and cervical ranges of motion in 24 assessing Plaintiff’s “abnormal” musculoskeletal symptoms. (AR 670, 672). She also noted 25 that Plaintiff was scheduled for a December 1, 2020 spinal stimulator procedure and 26 completed a temporary handicap plaque as requested by Plaintiff. (AR 672). 27 During a December 15, 2020 follow-up telehealth examination with Nurse 28 Practitioner Julie Supple two weeks after her spinal stimulator procedure, Plaintiff was able 1 to lift her arms above her head and perform bicep and tricep maneuvers and fine motor 2 skills without difficulty. (AR 2170). She was also able to lift her knees, stand on her toes 3 and heels, ambulate the room, march in place, and tap her toes without difficulty. (Id.). Her 4 general appearance was “healthy – alert – and no acute distress” and her gait was “normal.” 5 (Id.). Plaintiff was instructed to begin a formalized walking plan, starting with fifteen 6 minutes per day and increasing by five minutes every three-to-five days to a maximum of 7 forty minutes per day. (AR 2171). As with the September and November examinations, 8 these findings are, to some extent, inconsistent with NP DeRubeis’ February 2021 medical 9 source statements. Moreover, the December examination was specifically focused on the 10 condition of Plaintiff’s cervical and lumbar spine, so the significance of such 11 inconsistencies is not undermined by the purpose of the examination, as it was with the 12 September and November examinations. That said—and as with the November 13 examination—the December examination also included findings that were arguably 14 consistent with NP DeRubeis’ February 2021 opinions. For example, Plaintiff complained 15 of headaches, fatigue, anxiety, pain in the left neck, difficulty sleeping, and a regular need 16 for and use of pain medications. (AR 2166, 2169). Plaintiff was also ordered to continue 17 wearing the cervical collar and bone stimulator, appear for x-rays in January 2021, and 18 follow up with Dr. Porter. (AR 2171). 19 In sum, each of the September, November, and December 2020 examinations 20 contained some findings that were at least somewhat inconsistent with NP DeRubeis’ 21 February 2021 opinions. Whereas NP DeRubeis identified an abnormal gait in February 22 2021, Plaintiff was described as having a “normal” and “smooth” gait during the 2020 23 examinations. Likewise, NP DeRubeis’ noted pain, numbness, fatigue, and weakness as 24 symptoms Plaintiff was experiencing in February 2021, but the 2020 examinations noted a 25 “normal” and “healthy” general appearance and no apparent distress. However, the Court 26 cannot find that such relatively minor inconsistencies amount to substantial evidence 27 sufficient to entirely reject NP DeRubeis’ February 2021 opinions. As noted above, 28 Plaintiff’s spinal impairments and related symptoms were not even the primary focus of 1 the September and November examinations. Rather, the September 2020 examination was 2 a routine gynecological examination, and the November 2020 examination was focused on 3 Plaintiff’s menopause. Thus, it is rather unsurprising that the September and November 4 findings did not contain much information as it relates to the condition of Plaintiff’s spine. 5 Also as noted above, the 2020 examinations contain almost as many consistencies with NP 6 DeRubeis’ February 2021 opinions as they do inconsistencies. The November 7 examination, for example, noted Plaintiff’s low back pain and decreased ranges of 8 motion—symptoms that were noted in NP DeRubeis’ medical source statements. Likewise, 9 the December functional findings—that Plaintiff was able to lift her arms above her head, 10 perform certain upper extremity maneuvers and fine motor skills without difficulty, lift her 11 knees, stand on her toes and heels, ambulate the room, march in place, and tap her toes— 12 can plausibly be read as consistent with NP DeRubeis’ medical source statements, which 13 did not find that Plaintiff was entirely unable to perform such functions but rather that 14 Plaintiff was merely limited in her ability to perform such functions for extended periods 15 of time. Thus, the fact that Plaintiff could ambulate the room and march in place in 16 December 2020 is not inconsistent with NP DeRubeis’ February 2021 finding that Plaintiff 17 could only sit, stand, or walk for less than two hours out of an eight-hour workday. 18 Similarly, the fact that Plaintiff could lift her arms above her head in December 2020 does 19 not wholly contradict NP DeRubeis’ February 2021 finding that Plaintiff could reach her 20 arms above her head only 50 percent of the time during a typical eight-hour workday. 21 The ALJ cited only to the above three examinations as being inconsistent with NP 22 DeRubeis’ opinions. (See AR 40). The Court finds that the three examinations do not 23 amount to substantial evidence of inconsistency, given that their findings were only 24 partially inconsistent—and, in many respects, consistent—with NP DeRubeis’ February 25 2021 medical source statements. Although the ALJ was not necessarily required to 26 compare and contrast NP DeRubeis’ opinions with every other medical opinion in the 27 record to meet her burden on the consistency factor, the Court finds that the three 28 examinations the ALJ did rely on were insufficient to find NP DeRubeis’ opinions wholly 1 inconsistent with the record, particularly given the substantial evidence in the record that 2 is consistent with the spinal impairments and related symptoms and limitations noted by 3 NP DeRubeis. 4 b. Supportability 5 “Supportability means the extent to which a medical source supports the medical 6 opinion by explaining the relevant objective medical evidence.” Woods, 32 F.4th at 791– 7 92 (alterations omitted). The supportability factor, as this Court understands it, goes 8 directly to whether, or to what extent, the source explained her opinion or conclusions by 9 providing or citing objective supporting evidence. Id.; see also Lewis, 2022 WL 4008026, 10 at *6 (citing 20 C.F.R. § 404.1520c(c)(1)) (“Supportability examines the relevant objective 11 medical evidence and supporting explanations presented by the source.”). The ALJ here 12 did not explicitly address the supportability factor. Rather than considering the objective 13 supporting evidence that NP DeRubeis relied on to reach her opinions, the ALJ only found 14 that NP DeRubeis’ February 2021 opinions were “unsupported by her own physical 15 examination findings” on September 3, 2020 and on November 11, 2020. (AR 40). NP 16 DeRubeis’ February 2021 opinions, however, did not make any mention of the September 17 or November 2020 examinations, let alone cite to the findings of those examinations as 18 supportive of her opinions. As a result, the ALJ’s comparison of the September and 19 November examination findings with NP DeRubeis’ February 2021 opinions speaks more 20 directly to the issue of consistency than it does to supportability. 21 The Court notes that NP DeRubeis’ February 2021 medical source statements 22 consisted mostly of short answers to specific questions and “check the box” conclusions, 23 making it somewhat difficult to identify what objective medical evidence she relied on to 24 make her conclusions. (See AR 2232–41). However, this did not relieve the ALJ of her 25 duty to consider supportability. At the least, the ALJ could have explained that the medical 26 source statements lacked direct citations or references to objective medical evidence, and 27 that they were therefore unsupported. The ALJ did not do so, however, and instead simply 28 referenced previous examinations that she found to be inconsistent; again, such an analysis 1 is more closely characterized as an inconsistency analysis than a supportability analysis. 2 To an extent, it can be said that NP DeRubeis’ medical source statements were based 3 on her own examinations of Plaintiff. In this way, the ALJ’s consideration of the September 4 and November examinations could be considered a supportability analysis. However, NP 5 DeRubeis examined Plaintiff numerous other times over the course of nearly two years, 6 and a sufficient supportability analysis would have considered the extent to which these 7 other examinations supported or failed to support NP DeRubeis’ opinions. Moreover, and 8 as explained above with respect to the consistency factor, the September and November 9 examinations were, in many ways, supportive of NP DeRubeis’ February 2021 opinions. 10 The ALJ failed to consider this by finding the September and November examinations 11 wholly “unsupportive” of NP DeRubeis’ opinions in the medical source statements. 12 In sum, the Court finds that the ALJ failed to meaningfully articulate how she 13 considered the supportability factor in her analysis because she did not address the degree 14 to which NP DeRubeis supported her opinions in the medical source statements with 15 objective medical evidence. See 20 C.F.R. § 404.1520c(b)(2) (“[W]e will explain how we 16 considered the supportability and consistency factors for a medical source’s medical 17 opinions . . . in your determination or decision.”). 18 2. Dr. Porter 19 On February 8, 2021, Dr. Porter completed two medical source statements assessing 20 Plaintiff’s physical capacities and workplace restrictions. (AR 2217–30). The first 21 addressed restrictions related to Plaintiff’s lumbar spine impairments (AR 2232–35) and 22 the second addressed restrictions related to Plaintiff’s cervical spine impairments (AR 23 2237–41). In the first medical source statement, Dr. Porter began by noting that he had 24 been seeing Plaintiff every two months for cervical myelopathy and lumbar 25 spondylolisthesis. (AR 2232). He stated that her prognosis was “good.” (Id.). Dr. Porter 26 listed cervical and lumbar MRIs as “clinical findings, laboratory and test results” showing 27 Plaintiff’s impairments. (Id.). He opined that Plaintiff’s impairments had lasted or could be 28 expected to last at least twelve months. Dr. Porter then listed a number of “positive 1 objective signs” supporting his conclusions: reduced range of motion, positive straight leg 2 raising, abnormal gait, sensory loss, reflex changes, tenderness, and muscle weakness. (AR 3 2233). He opined that emotional factors did not contribute to the severity of Plaintiff’s 4 symptoms and functional limitations, and he did not identify any side effects of any 5 medications Plaintiff was taking that would have implications for working. (Id.). Dr. Porter 6 found that Plaintiff could be expected to walk four city blocks without rest or severe pain. 7 He further found that she could sit for 45 minutes before needing to get up and stand for 8 30 minutes before needing to sit down or walk around. (Id.). Dr. Porter opined that Plaintiff 9 could be expected to sit, stand, or walk for less than two hours total in an eight-hour 10 workday, and that Plaintiff needed a job that permitted shifting positions at will from 11 sitting, standing, or walking. (Id.). He concluded that she would need to walk every 30 12 minutes for approximately 13 minutes but would not need unscheduled breaks during a 13 workday. He opined that she would not need to elevate her legs with prolonged sitting and 14 that she did not need a cane or other assistive device. (AR 2234). He concluded that 15 Plaintiff could occasionally lift and carry less than ten pounds. He also concluded that 16 Plaintiff could only occasionally “twist,” but never stoop, bend, crouch, squat, or climb 17 ladders and stairs. (Id.). He estimated that Plaintiff would likely be off task approximately 18 15 percent of the total workday as a result of her symptoms. (AR 2235). He concluded that 19 Plaintiff was “[c]apable of moderate stress – normal work” and that she was likely to be 20 absent from work about one day per month as a result of her impairments. (Id.). 21 In the second medical source statement, Dr. Porter began by noting that he had been 22 seeing Plaintiff every three months for cervical spondylolisthesis. (AR 2237). He stated 23 that her prognosis was “good” while also noting that she had chronic pain and paresthesia. 24 (Id.). Dr. Porter identified tenderness, muscle weakness, chronic fatigue, lack of 25 coordination, and motor loss as the symptoms associated with Plaintiff’s cervical spine 26 impairments. (Id.). He noted that she had a “significant” limitation of motion, specifying 27 that she had a 20 percent cervical range of motion in extension, 25 percent in flexion, 20 28 percent in left and right rotation, 25 percent in left lateral bending, and 20 percent in right 1 lateral bending. (Id.). He indicated that Plaintiff did not have severe headache pain 2 associated with her cervical impairments. (AR 2238). Dr. Porter noted that Plaintiff had 3 surgery—a C4-C7 anterior cervical discectomy and fusion—on December 1, 2020, and 4 that her impairments had lasted or could be expected to last at least twelve months. (Id.). 5 He again noted that emotional factors did not contribute to the severity of Plaintiff’s 6 symptoms and functional limitations. (Id.). He found that Plaintiff could walk 7 approximately four city blocks without rest or severe pain. (AR 2239). He also found that 8 Plaintiff could sit for 30 minutes at a time and stand for 30 minutes at a time. (Id.). In total, 9 he found that Plaintiff could sit, stand, or walk for about two hours total in an eight-hour 10 workday. (Id.). He opined that Plaintiff needed a job that permitted shifting positions at 11 will from sitting, standing, and walking, and that she needed to include periods of walking 12 during an eight-hour workday. (Id.). Specifically, Dr. Porter found that Plaintiff needed to 13 walk every 90 minutes for at least five minutes, and that she would need unscheduled 14 breaks for ten minutes approximately one to two times per working day. (Id.). He found 15 that Plaintiff could only occasionally lift less than ten pounds. (AR 2240). He found that 16 Plaintiff could only occasionally look down (sustained flexion of neck), but that she could 17 frequently turn her head left or right, look up, and hold her head in a static position. (Id.). 18 He found that she could occasionally twist, stoop, and bend, rarely crouch and squat, and 19 never climb ladders or stairs. (Id.). Dr. Porter opined that Plaintiff had “significant 20 limitations with reaching, handling, or fingering.” (Id.). Specifically, he noted that plaintiff 21 could use her upper extremities—both left and right hands, fingers, and arms—to grasp, 22 turn, and twist objects, make fine manipulations, reach in front of her body, and reach 23 overhead approximately 20 percent of the time during an eight-hour workday. (Id.). He 24 noted that she would be off task approximately five percent of the typical workday as a 25 result of severe symptoms interfering with her attention and concentration. (AR 2241). Dr. 26 Porter concluded that Plaintiff was “[c]apable of moderate stress – normal work” and that 27 her impairments were likely to produce both good days and bad days. (Id.). 28 In the decision, the ALJ found Dr. Porter’s opinions in his medical source statements 1 to be “somewhat persuasive.” (AR 40). The ALJ explained her reasoning as follows: 2 The opinions of Dr. Porter[,] . . . rendered just nine weeks after her cervical spine surgery, are somewhat persuasive as it 3 pertains to the claimant’s post-operative period as it is consistent with her post-operative discharge restrictions, 4 including no bending, lifting, or twisting, and no strenuous activity, and her cervical collar was to be worn at all times 5 when out of bed except for showering and eating[,] . . . and supported by her post-operative follow up encounter where the 6 claimant was able to lift her arms above her head and perform biceps and triceps maneuvers and fine motor skill activities 7 without difficulty. She could lift her knees, stand on toes and 8 heels, march in place, tap toes, and ambulate in the room without difficulty. Her gait was normal. She was instructed to 9 begin a formalized walking plan, starting with 15 minutes per day, increased by five minutes every three to five days to a 10 maximum of 40 minutes per day. 11 (AR 40–41 (internal citations omitted) (emphasis added)). 12 Plaintiff argues that the ALJ did not sufficiently explain her persuasiveness finding 13 with respect to Dr. Porter’s February 2021 opinions in part because she “failed to say which 14 of Dr. Porter’s opinions were persuasive, and which were rejected as unsupported or 15 inconsistent with the record.” (Doc. 12 at 16). The Court agrees. As seen above, the ALJ’s 16 analysis states that Dr. Porter’s opinions are “somewhat persuasive as it pertains to the 17 claimant’s post-operative period” and then proceeds to mention only the specific aspects 18 of Dr. Porter’s February 2021 opinions that she found persuasive—that is, those portions 19 which the ALJ found to be consistent with Plaintiff’s post-operative discharge restrictions 20 and supported by her post-operative follow up encounter on December 15, 2020. (AR 40– 21 41). The above-excerpted paragraph—which constitutes the entirety of the ALJ’s 22 persuasiveness analysis as it relates to Dr. Porter’s opinion—does not identify any portion 23 of Dr. Porter’s February 2021 opinions which the ALJ found to be inconsistent with or 24 unsupported by the record. Consequently, the ALJ failed to provide any explanation for 25 why she found Dr. Porter’s opinions to be somewhat persuasive as opposed to fully or 26 mostly persuasive. 27 The ALJ’s use of the word “somewhat” cannot be overlooked as superfluous either, 28 1 as the ALJ specifically found other medical opinions to be “persuasive” or “mostly 2 persuasive” earlier in the decision. For example, the ALJ found the opinions of Dr. Foster- 3 Valdez and Dr. Schwartz—two non-treating, state-agency mental health disability 4 consultants—to be “persuasive.” (AR 40). Likewise, the ALJ found the opinions of Dr. 5 Combs and Dr. McKay—two non-treating, state-agency disability consultants—to be 6 “mostly persuasive.” (Id.). Notably, the ALJ identified the specific aspects of Dr. Combs 7 and Dr. McKay’s opinions that she found persuasive (Dr. McKay’s opinion as to Plaintiff’s 8 preclusion of climbing ladders, ropes, and scaffolds) and that she found less persuasive 9 (Dr. Combs and Dr. McKay’s conclusions that Plaintiff was “limited” in reaching overhead 10 and “unlimited” in handling; the ALJ found that Plaintiff’s symptoms supported frequent 11 reaching and handling). (See id.). The ALJ did not do the same for Dr. Porter, despite 12 finding Dr. Porter’s opinions only “somewhat persuasive,” clearly implying that certain 13 portions or aspects of his opinions were less persuasive or unpersuasive altogether. 14 The Court finds the ALJ failed to adequately explain how she considered the 15 supportability and consistency factors in finding certain aspects of Dr. Porter’s opinions 16 less persuasive or unpersuasive altogether. See Woods, 32 F.4th at 792 (alterations in 17 original) (citations omitted) (“The agency must ‘articulate . . . how persuasive’ it finds ‘all 18 of the medical opinions’ from each doctor or other source and ‘explain how [it] considered 19 the supportability and consistency factors’ in reaching these findings.”). 20 c. Symptom Testimony 21 Given this Court’s finding that the ALJ erred in evaluating the medical opinion 22 evidence of NP DeRubeis and Dr. Porter, the Court need not address Plaintiff’s arguments 23 with respect to the ALJ’s rejection of Plaintiff’s symptom testimony. See Garcia v. Comm’r 24 of Soc. Sec. Admin., No. CV-20-08258-PCT-DLR, 2021 WL 5822642, at *4 (D. Ariz. Dec. 25 8, 2021) (“Because the Court has found error in the consideration of the medical opinions 26 as discussed above, which necessarily impacts the ALJ’s RFC finding, the Court will not 27 consider Plaintiff’s other argument as the ALJ will need to reassess Plaintiff’s RFC on 28 remand.”). 1 IV. CONCLUSION 2 The Court finds that the ALJ’s persuasiveness determinations with respect to NP 3 | DeRubeis and Dr. Porter were not supported by substantial evidence and failed to 4 adequately consider the supportability and consistency factors as required by the regulations. “These errors are harmful because this Court cannot confidently conclude that 6 | reasonable ALJ, when fully crediting [NP DeRubeis] and [Dr. Porter]’s opinions, could 7 | have reached a different disability determination.” Lewis, 2022 WL 4008026, at *7 (citing 8 | Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) (“[A] reviewing 9 | court cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different 11 | disability determination.”’)). Thus, the Court reverses the ALJ’s decision. In its discretion, 12 | the Court remands for further proceedings consistent with this opinion. See Garrison v. 13 | Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (The Court has “flexibility to remand for further 14| proceedings when the record as a whole creates serious doubt as to whether the claimant 15 | is, in fact, disabled within the meaning of the Social Security Act.”). 16 Accordingly, 17 IT IS ORDERED that the April 13, 2021 final decision (AR 24—42) of the 18 | Commissioner of Social Security is reversed and this matter is remanded to the 19 | Commissioner of Social Security for further proceedings consistent with this Order. 20 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 21 | accordingly and terminate this action. 22 Dated this 15th day of May, 2023. 23 United States District didge 26 27 28 18