(SS) Gonzales v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 PATRICK WILLIAM GONZALES, Case No. 1:20-cv-01530-SKO 11 Plaintiff, 12 v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT KILOLO KIJAKAZI, 14 Acting Commissioner of Social Security,1 15 Defendant. (Doc. 1) 16 17 _____________________________________/ 18 19 20 I. INTRODUCTION 21 On October 29, 2020, Plaintiff Patrick William Gonzales (“Plaintiff”) filed a complaint 22 under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social 23 Security (the “Commissioner” or “Defendant”) denying his applications for disability insurance 24 benefits (“DIB”) and Supplemental Security Income (SSI) under the Social Security Act (the 25 “Act”). (Doc. 1.) The matter is currently before the Court on the parties’ briefs, which were 26 27 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 28 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 1 submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate 2 Judge.2 3 II. BACKGROUND 4 Plaintiff was born on April 9, 1966, completed eleventh grade, can communicate in English, 5 and previously worked as a laborer, farm machine operator, and forklift operator. (Administrative 6 Record (“AR”) 26, 47, 48, 50, 67, 84, 87, 104, 105, 109, 122, 125, 138, 289, 292, 294, 295, 301, 7 347, 381, 462.) Plaintiff filed claims for DIB and SSI payments on January 9, 2018, and January 8 12, 2018, respectively, alleging he became disabled on September 1, 2016, due to right shoulder 9 dislocation with torn ligaments, diabetes, high blood pressure, kidney cancer, enlarged heart, high 10 cholesterol, depression, and possible lung cancer. (AR 15, 67, 68, 87, 88, 109, 110, 125, 126, 160, 11 289, 293, 347, 381.) 12 A. Relevant Medical Evidence3 13 1. Physical Medical Evidence of Record 14 In July 2017, Plaintiff presented to the emergency department complaining of neck and 15 right shoulder pain following a motor vehicle accident. (AR 407–26.) An examination showed 16 “[m]idline neck tenderness,” “[l]eft chest wall contusion,” and “[o]bvious right shoulder deformity 17 with skin tear over the right elbow.” (AR 408.) X-rays of his right shoulder revealed dislocation, 18 and he underwent a closed reduction of his right shoulder dislocation. (AR 408, 409.) A CT of 19 Plaintiff’s cervical spine showed “likely positional” scoliosis with no definite fracture. (AR 412, 20 422.) A few weeks later, it was noted that Plaintiff could not move his right shoulder more than 21 five percent in every direction. (AR 443.) An examination performed in late September 2017 22 revealed extreme discomfort with attempted range of motion of Plaintiff’s right shoulder, some 23 swelling in his right hand, no shoulder tenderness, full range of motion of his right elbow, and 24 difficulty making a full fist with his right hand. (AR 441.) 25 One month later, Plaintiff reported that he was feeling “a little bit better” with improved 26 neurological symptoms, although he still had “profound weakness with his right shoulder” and an 27 2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (See Doc. 10.) 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 inability to elevate it. (AR 438.) An MRI of the right shoulder noted a massive rotator cuff tearing 2 with retraction back to the level of the glenohumeral joint associated with muscular atrophy, which 3 the provider observed “would suggest a chronic nature to this injury.” (AR 432, 438.) The provider 4 noted his concern that Plaintiff “has an injury to the shoulder which is not repairable . . . Based on 5 the level of muscular atrophy and the amount of retraction of the tendons and concerned that this 6 tear will not be fixable.” (AR 438.) The provider indicated his plan to “send the patient to a 7 shoulder specialist as soon as possible for evaluation and recommendations with regard to the 8 appropriate management of the shoulder.” (AR 438.) In November 2017, Plaintiff underwent an 9 orthopedic consultation. (AR 431–32.) The orthopedic surgeon diagnosed a “[c]uff tear 10 arthropathy involving the right shoulder with significant rotator cuff retraction and atrophy.” (AR 11 432.) The surgeon opined that the rotator cuff “was not salvageable,” and that reverse shoulder 12 replacement was indicated. (AR 432.) 13 In April 2018, an examination of Plaintiff’s right shoulder showed a range of motion up to 14 90 degrees with pain, no impingement or instability, positive signs of bursitis and tendonitis, and 15 normal neurovascular findings. (AR 573.) He was assessed with right rotator cuff arthropathy and 16 an irreparable rotator cuff tear. (AR 573.) Plaintiff reported “doing well” with Tylenol and wished 17 to delay injection or surgery at that time. (AR 573.) 18 An examination performed in June 2018 by Robert E. Caton, M.D., revealed “significant 19 pain” and tenderness in Plaintiff’s right shoulder tenderness with reduced range of motion; 20 decreased sensation about the skin secondary to the dislocation of the shoulder; significant degree 21 of adhesive capsulitis; neck tenderness at C6–7; neck pain with range of motion; decreased 22 sensation about the right shoulder in a C5 dermatome pattern; low back tenderness; difficulty 23 squatting; and difficulty getting on and off the examination table. (AR 578–79.) Dr. Caton gave 24 Plaintiff Tramadol for pain and Tizanidine as a muscle relaxant. (AR 582.) He agreed with 25 previous assessments that Plaintiff would eventually require surgery. (AR 582.) 26 At a follow up appointment with Dr. Caton in August 2018, an examination demonstrated 27 similar findings. (AR 584–86.) An MRI of Plaintiff’s cervical spine revealed mild to moderate 28 multilevel osteophytes and disc bulging. (AR 585.) An MRI of the lumbar spine was also 1 abnormal, showing mild disc bulging at multiple levels, as well as moderate central and severe 2 lateral disc height loss with prominent bulging disc osteophyte complex at the L5–S1 level with 3 moderate neural foraminal narrowing and contact of the exiting right L5 nerve roots. (AR 585– 4 86.) Dr. Caton administered an injection to Plaintiff’s right shoulder. (AR 586–87.) 5 In October 2018, Dr. Caton’s examination of Plaintiff showed right shoulder pain with 6 decreased abduction, poor abduction strength, and an inability to place his hand behind his head or 7 behind his back with a painful arc of motion, but otherwise intact motor tone and sensation. (AR 8 592.) An examination of Plaintiff’s neck revealed persistent pain with decreased motion and 9 painful arc of motion. (AR 592.) It was noted that Plaintiff, “on a probable basis,” is going to 10 require surgery to repair his right rotator cuff, a cervical steroid injection, and injection therapy for 11 his low back. (AR 593–94.) An examination of Plaintiff performed in December 2018 showed 12 decreased range of motion of the right shoulder and tenderness in the rotator cuff area, with grossly 13 intact motor and sensory examination. (AR 680.) He was given a refill of Tramadol. (AR 681.) 14 Plaintiff began undergoing physical therapy in January 2019. (AR 595–96). In May 2019, 15 an examination demonstrated decreased range of motion of Plaintiff’s right shoulder and grossly 16 intact motor and sensory examination. (AR 610.) He was given a refill of Tizanidine. (AR 610.) 17 2. Psychiatric Medical Evidence of Record 18 In January 2017, Plaintiff reported that he stopped taking his antidepressant because it was 19 “too strong” and made him feel “worse and dizzy.” (AR 451.) The provider noted Plaintiff was 20 alert and interactive with normal affect and was “[d]oing some what [sic] better.” (AR 451.) 21 Plaintiff underwent a consultative psychological evaluation performed by Ekram Michiel, 22 M.D., in March 2018. (AR 461–64.) Plaintiff reported feeling tense throughout the day with 23 episodic panic attacks. (AR 462.) Plaintiff further reported that he is always worried, gets easily 24 frustrated, and is moody. (AR 462.) According to Plaintiff, he is able to take care of his personal 25 hygiene and rides his stationary bike seven miles a day. (AR 462.) 26 Upon examination, Dr. Michiel noted Plaintiff’s unkempt appearance, poor hygiene, 27 hyperventilation, a “depressed” mood with an intense and anxious affect, no suicidal ideation, and 28 normal thought processes and content. (AR 463.) Plaintiff had normal orientation but impaired 1 attention and concentration. (AR 463.) Dr. Michiel noted Plaintiff was able to do simple math 2 calculations and exhibited normal judgment and insight, but his remote memory was impaired. 3 (AR 463.) 4 During Plaintiff’s diabetes follow up appointments in April 2018 (AR 724), May 2018 (AR 5 697), December 2018 (AR 680), February 2019 (AR 668), and April 2019 (AR 629), his physical 6 exams showed that he was “[a]lert and interactive with normal affect.” 7 3. Opinion Evidence 8 In March 2018, L. Zuniga, M.D., a state agency physician, reviewed the record and assessed 9 Plaintiff’s physical residual functional capacity (RFC).4 (AR 79–80, 99–100.) Dr. Zuniga found 10 that Plaintiff could lift and/or carry occasionally 20 pounds and frequently 10 pounds; stand and/or 11 walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; 12 perform unlimited pushing and pulling, subject to the above lift-and-carry restrictions; and perform 13 limited right overhead reaching. (AR 79–80, 99–100.) Upon reconsideration in May 2018, another 14 state agency physician, Yvonne Post, D.O., reviewed the record, affirmed Dr. Zuniga’s findings, 15 and added the additional limitations of occasional crawling and climbing of ladders, ropes, and 16 scaffolds. (AR 119–121, 135–37.) 17 In March 2018, state agency physician S. Khan, Ph.D., reviewed the record and assessed 18 Plaintiff’s mental RFC. (AR 82–83, 102–03.) Dr. Khan opined that Plaintiff was able to: 19 understand and remember simple instructions; sustain attention and concentration for two-hour 20 periods to complete a regular workday at an acceptable pace and attendance schedule; interact 21 adequately in casual settings and respond appropriately to constructive instructions; and respond 22 to simple /infrequent changes in routine. (AR 83, 103.) Dr. Khan further found that Plaintiff was 23 not precluded from public contact. (AR 83, 103.) Upon reconsideration in April 2018, another 24 25 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 26 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8p (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an 27 individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 1 state agency physician, K. Gregg, M.D., reviewed the record and deemed Plaintiff’s depression and 2 anxiety disorders non-severe. (AR 115–16.) 3 Dr. Caton opined in October 2018 that Plaintiff would require restrictions of no repetitive 4 motion of the right shoulder; no lifting above the horizontal; no repetitive motion with the neck; no 5 heavy lifting, pushing, or pulling more than 10 lbs.; and no climbing of ladders. (AR 594.) 6 Following his examination of Plaintiff in March 2018, consultative psychiatrist Dr. Michiel 7 opined that Plaintiff is “unable to maintain attention and concentration to carry out simple job 8 instructions due to his depression and anxiety.” (AR 464.) 9 B. Administrative Proceedings 10 The Commissioner denied Plaintiff’s application for benefits initially on March 21, 2018, 11 and again on reconsideration on May 3, 2018. (AR 147–56, 160–64.) Consequently, Plaintiff 12 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 165–80.) The ALJ 13 conducted a hearing on May 7, 2020. (AR 34–66.) Plaintiff appeared at the hearing with his 14 counsel and testified as to his alleged disabling conditions and work history. (AR 43–59.) 15 1. Plaintiff’s Testimony 16 He testified that he currently works as a maintenance person for a 160-home mobile home 17 facility, making sure the grounds are clean, pulling weeds, and tending to the swimming pool 18 (AR 43–45, 54, 57.) According to Plaintiff, he does not lift more than five pounds and uses a golf 19 cart at work. (AR 44, 54.) He works four hours a day, three of which are spent standing or 20 walking. (AR 45.) Plaintiff testified that he was “lucky” to get the job from Craigslist. (AR 45.) 21 His current boss is not happy with his pace of work activity, which has caused conflict. (AR 57.) 22 Prior to his maintenance position, he was a forklift operator, a farm machine operator, and a 23 mason. (AR 46–50.) 24 Plaintiff’s wife prepares his meals, does the grocery shopping, and the household chores. 25 (AR 51.) Plaintiff stated that when he comes home from work, he takes a pain pill, sits in his 26 recliner, and goes to bed by 6:00 p.m. (AR 51, 52–53.) Plaintiff testified that he could sit for two 27 hours before needing to change positions. (AR 52.) 28 1 According to Plaintiff, his neck and back prevent work activity and his anxiety makes him 2 unable to think or “process.” (AR 54, 56.) Plaintiff testified that his shoulder pain is “constant” 3 and “ongoing” and that he feels “fire” in his arm every day. (AR 58.) He treats his pain with 4 medication and takes muscle relaxants for cramps he gets in his shoulder. (AR 58.) According 5 to Plaintiff, the medication causes side effects such as dizziness. (AR 58.) 6 2. Vocational Expert’s Testimony 7 A Vocational Expert (“VE”) also testified at the hearing that Plaintiff had past work as an 8 forklift operator, Dictionary of Operational Titles (DOT) code 921.683-050, which was medium 9 work (light as performed), with a specific vocational preparation (SVP)5 of 3; as a cement mason, 10 DOT code 844.364-010, heavy work, with an SVP of 7; as a farm machine operator, DOT 409.683- 11 010, heavy work (medium as performed), with an SVP of 3; and as a janitor, DOT code 382.664- 12 010, medium work (light as performed), with an SVP of 3 (SVP of 2 as performed). (AR 60–61.) 13 The ALJ asked the VE to consider a person of Plaintiff’s age, education, and with his work 14 experience and posed a series of hypotheticals about this person. (AR 61.) The VE was to assume 15 this person: can lift or carry 20 pounds occasionally and ten pounds frequently; could stand or walk 16 about six out of eight hours; could sit about six out of eight hours; can only occasionally climb 17 ramps or stairs; and can occasionally crawl and reach overhead with their dominant upper 18 extremity. (AR 61.) The VE testified that such a person could perform Plaintiff’s past relevant 19 work as a forklift operator and janitor as performed. (AR 61.) 20 The ALJ asked the VE, in a second hypothetical, to consider the individual presented in the 21 first hypothetical but that such person would be limited simple and routine tasks and routine work- 22 related decision making, i.e., jobs that have a reasoning level of 1 or 2. (AR 61.) The VE testified 23 that such a person could perform Plaintiff’s past relevant work as a janitor as performed, and could 24 perform other jobs in the national economy, such as cleaner, DOT code 323.687-014, light work, 25 with an SVP of 2; cashier, DOT code 211.462-010, light work, with an SVP of 2; and sales 26 5 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in 28 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level 1 attendant, DOT code 299.677- 010, light work, with an SVP of 2. (AR 61–62.) 2 For a third hypothetical, the ALJ asked the VE to consider an individual who: can lift or 3 carry 20 pounds occasionally and ten pounds frequently; could stand or walk about six out of eight 4 hours; could sit for about six out of eight hours; could occasionally climb ramps or stairs; could 5 occasionally crawl and reach with their dominant extremity; could never lift with the dominant 6 upper extremity above chest height; and is limited to simple and routine tasks and routine work- 7 related decision making. (AR 62.) The VE testified that such limitation would preclude all work. 8 (AR 62.) 9 Plaintiff’s attorney posed a hypothetical involving a person who: could lift no more than 10 ten pounds; never perform repetitive motion of the dominant right shoulder; never lift the right arm 11 above horizontal; and never perform repetitive motion of the neck. (AR 62–63.) The VE testified 12 that there would be no work such a person could perform. (AR 63.) Plaintiff’s attorney posed a 13 second hypothetical involving a person who would be off task 15% of the workday; the VE 14 responded that no work would be available. (AR 63.) Finally, Plaintiff’s attorney posed a third 15 and final hypothetical involving a person who would be unable to complete an eight-hour workday 16 two days a week. (AR 63.) The VE testified that there would be no work such a person could 17 perform. (AR 63.) 18 C. The ALJ’s Decision 19 In a decision dated June 3, 2020, the ALJ found that Plaintiff was not disabled, as defined 20 by the Act. (AR 15–18.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 21 §§ 404.1520, 416.920. (AR 17–28.) The ALJ decided that Plaintiff met the insured status 22 requirements of the Act through September 30, 2017, and he had not engaged in substantial gainful 23 activity since September 1, 2016, the alleged onset date (step one). (AR 17.) At step two, the ALJ 24 found Plaintiff’s following impairments to be severe: degenerative joint disease; degenerative disc 25 disease; obesity; and anxiety. (AR 18.) Plaintiff did not have an impairment or combination of 26 impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 27 Subpart P, Appendix 1 (“the Listings”) (step three). (AR 18–21.) 28 1 The ALJ then assessed Plaintiff’s RFC and applied the assessment at steps four and five. 2 See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (“Before we go from step three to step four, we 3 assess your residual functional capacity . . . . We use this residual functional capacity assessment 4 at both step four and step five when we evaluate your claim at these steps.”). The ALJ determined 5 that Plaintiff had the RFC: 6 to perform light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b), but with the following specific limitations: [Plaintiff] can lift and carry 20 pounds 7 occasionally and 10 pounds frequently; sit, stand, and walk for about six hours each in an eight-hour workday; occasionally climb ramps and stairs; occasionally crawl; 8 occasionally reach overhead with the dominant upper extremity; and is limited to 9 simple and routine tasks, as well as routine work-related decision making. 10 (AR 21–25.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 11 expected to cause the alleged symptoms[,]” he rejected Plaintiff’s subjective testimony as “not 12 entirely consistent with the medical evidence and other evidence in the record for the reasons 13 explained in this decision.” (AR 22.) 14 The ALJ determined that, given his RFC, Plaintiff could not perform his past relevant work 15 (step four), but that he could perform a significant number of other jobs in the local and national 16 economies, specifically cleaner, cashier, and sales attendant (step five). (AR 25–27.) Ultimately, 17 the ALJ concluded that Plaintiff was not disabled from September 1, 2016, through the date of his 18 decision. (AR 27–28.) 19 Plaintiff sought review of this decision before the Appeals Council, which denied review 20 on August 25, 2020. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 21 Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 22 III. LEGAL STANDARD 23 A. Applicable Law 24 An individual is considered “disabled” for purposes of disability benefits if he or she is 25 unable “to engage in any substantial gainful activity by reason of any medically determinable 26 physical or mental impairment which can be expected to result in death or which has lasted or can 27 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 28 However, “[a]n individual shall be determined to be under a disability only if [their] physical or 1 mental impairment or impairments are of such severity that [they] are not only unable to do [their] 2 previous work but cannot, considering [their] age, education, and work experience, engage in any 3 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 4 “The Social Security Regulations set out a five-step sequential process for determining 5 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 6 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. 7 The Ninth Circuit has provided the following description of the sequential evaluation analysis: 8 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 9 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 10 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 11 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 12 not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing [their] past relevant work. If so, the claimant is not disabled. If not, the 13 ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the 14 claimant is not disabled. If not, the claimant is disabled. 15 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) 16 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found 17 to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 18 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 19 “The claimant carries the initial burden of proving a disability in steps one through four of 20 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 21 1989)). “However, if a claimant establishes an inability to continue [their] past work, the burden 22 shifts to the Commissioner in step five to show that the claimant can perform other substantial 23 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 24 B. Scope of Review 25 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 26 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 27 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” means 28 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 1 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 2 305 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but less than a 3 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 4 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 5 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 6 only if that decision is not supported by substantial evidence or it is based upon legal error.” 7 Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the 8 ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; 9 see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible 10 to more than one rational interpretation, the court may not substitute its judgment for that of the 11 Commissioner.”) (citations omitted). 12 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 13 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court 14 must determine whether the Commissioner applied the proper legal standards and whether 15 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 16 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be 17 affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 18 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 19 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 20 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 21 1993)). 22 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 23 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 24 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 25 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 26 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Circ. 2008) (quoting Robbins, 466 F.3d at 885). 27 “[T]he burden of showing that an error is harmful normally falls upon the party attacking the 28 agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 1 /// 2 IV. DISCUSSION 3 Plaintiff contends the ALJ erred in failing to properly articulate the reasons for rejecting the 4 opinions of Plaintiff’s “treating” physician Dr. Caton as well as that of the consultative examiner 5 Dr. Michiel. He also contends the ALJ failed to articulate clear and convincing reasons for rejecting 6 Plaintiff’s subjective-symptom testimony. Plaintiff therefore requests this Court remand for further 7 proceedings. (Docs. 21, 25.) 8 The Commissioner contends that the ALJ reasonably considered Drs. Caton’s and Michiel’s 9 opinions, and that substantial evidence supports the ALJ’s evaluation of Plaintiff’s symptoms. 10 (Doc. 24.) 11 Because further proceedings are required regarding the opinions of Drs. Caton and Michiel, 12 the Court does not reach the subjective-symptom-testimony issue.6 13 A. Legal Standard 14 On January 18, 2017, the Social Security Administration published revisions to its 15 regulations regarding the evaluation of medical evidence. See REVISIONS TO RULES REGARDING 16 THE EVALUATION OF MEDICAL EVIDENCE, 82 Fed. Reg. 5844-01, 2017 WL 168819 (January 18, 17 2017). For applications, like Plaintiff’s, filed on or after March 27, 2017, the new regulations state 18 an ALJ need “not defer or give any specific evidentiary weight, including controlling weight, to 19 any medical opinion(s) or prior administrative medical finding(s), including those from [Plaintiff’s] 20 medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, an ALJ is to evaluate opinions 21 by considering their “persuasiveness.” Id. In determining how “persuasive” the opinion of a 22 medical source is, an ALJ must consider the following factors: supportability, consistency, 23 treatment relationship, specialization, and “other factors.” § 404.1520c(b), (c)(1)–(5); § 24 416.920c(b), (c)(1)–(5). Despite a requirement to “consider” all factors, the ALJ’s duty to articulate 25 26 6 See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for remand.”); see also Rendon G. v. Berryhill, No. EDCV 27 18-0592-JPR, 2019 WL 2006688, at *8 (C.D. Cal. May 7, 2019); Harris v. Colvin, No. 13-cv-05865 RBL, 2014 WL 4092256, at *4 (W.D. Wash. Aug. 11, 2014); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 28 (C.D. Cal. 2008) (“[The] Court need not address the other claims plaintiff raises, none of which would provide plaintiff 1 a rationale for each factor varies. § 404.1520c(a)–(b); § 416.920c(a)–(b). 2 In all cases, an ALJ must at least “explain how [they] considered” the supportability and 3 consistency factors, as they are “the most important factors.” §§ 404.1520c(b)(2), 416.920c(b)(2). 4 For supportability, the regulations state: “[t]he more relevant the objective medical evidence and 5 supporting explanations presented by a medical source are to support his or her medical opinion(s) 6 or prior administrative medical finding(s), the more persuasive [the opinion or finding] will be.” 7 §§ 404.1520c(c)(1), 416.920c(c)(1). For consistency, the regulations state: “[t]he more consistent 8 a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 9 medical sources and nonmedical sources in the claim, the more persuasive [the opinion or finding] 10 will be.” §§ 404.1520c(c)(2), 416.920c(c)(2). The ALJ is required to articulate findings on the 11 remaining factors (relationship with claimant, specialization, and “other”) only when “two or more 12 medical opinions or prior administrative medical findings about the same issue” are “not exactly 13 the same,” and both are “equally well-supported [and] consistent with the record.” § 14 404.1520c(b)(2), (3); § 416.920c(b)(2), (3). Finally, the regulations allow an ALJ to address 15 multiple opinions from a single medical source in one analysis. §§ 404.1520c(b)(1), 16 416.920c(b)(1) (“source-level articulation”). 17 B. Analysis 18 1. Whether the “Specific and Legitimate” Standard Still Applies 19 As an initial matter, the parties disagree about the relevance of current Ninth Circuit case 20 law in light of the amended regulations. Specifically, the parties dispute whether an ALJ is still 21 required to provide specific and legitimate reasons for discounting a contradicted opinion from a 22 treating or examining physician. (See Doc. 21 at 17–18; Doc. 24 at 10.) 23 The Commissioner contends that the new regulations change the standard for rejecting 24 medical providers’ opinions. (Doc. 24 at 8–10.) Specifically, the Commissioner contends that the 25 new regulations eliminate a hierarchy among medical opinions, superseding any priority upon 26 which the Ninth Circuit’s current standards were based, including the specific and legitimate 27 reasons standard. (See id. at 10.) The Commissioner further contends that the new regulations no 28 longer require an ALJ to reject an opinion at all, but instead require an ALJ merely to address the 1 persuasiveness of the opinion. (See id. at 8–9.) 2 Under current Ninth Circuit law, an ALJ must provide “clear and convincing” reasons to 3 reject an uncontradicted opinion from a treating or examining doctor, and “specific and legitimate” 4 reasons to reject a contradicted opinion from such doctor. Lester v. Chater, 81 F.3d 821, 830-31 5 (9th Cir. 1995). The regulations applicable to applications filed before March 27, 2017, set forth a 6 hierarchy for treatment of opinion evidence that, consistent with Ninth Circuit case law, gives 7 treating sources more weight than non-treating sources, and examining sources more weight than 8 non-examining sources. See STANDARDS FOR CONSULTATIVE EXAMINATIONS AND EXISTING 9 MEDICAL EVIDENCE, 56 Fed. Reg. 36,932, 1991 WL 142361 (Aug. 1, 1991); Magallanes v. Bowen, 10 881 F.2d 747, 751 (9th Cir. 1989) (adopting the “clear and convincing” and “specific and 11 legitimate” standards for rejecting treating and examining source medical opinions); Murray v. 12 Heckler, 722 F.2d 499, 502 (9th Cir. 1983) (holding that “[i]f the ALJ wishes to disregard the 13 opinion of the treating physician, he or she must make findings setting forth specific, legitimate 14 reasons for doing so that are based on substantial evidence in the record”); see also Thomas S. v. 15 Comm’r of Soc. Sec., No. C20-5083 RAJ, 2020 WL 5494904, at *2 (W.D. Wash. Sept. 11, 2020) 16 (noting that the “hierarchy [for treatment of medical opinion evidence] underpinned the 17 requirement in the Ninth Circuit that an ALJ must provide clear and convincing reasons to reject 18 an uncontradicted doctor’s opinion and specific and legitimate reason where the record contains 19 contradictory opinion”). 20 In 2017, as set forth above, the Commissioner revised agency regulations to eliminate the 21 hierarchy of medical opinions. The Ninth Circuit has not yet addressed whether or how the new 22 regulations alter the standards set forth in prior cases for rejecting a medical opinion. See, e.g., 23 Titus L.S. v. Saul, No. 2:20-cv-04825-AFM, 2021 WL 275927, at *6 (C.D. Cal. Jan. 26, 2021) 24 (noting that “it is not clear whether the Ninth Circuit precedent requiring that an ALJ provide ‘clear 25 and convincing’ or ‘specific and legitimate reasons’ before rejecting a treating source’s medical 26 opinions remain viable”); Allen T. v. Saul, No. EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. 27 Cal. June 29, 2020) (“It remains to be seen whether the new regulations will meaningfully change 28 how the Ninth Circuit determines the adequacy of an ALJ’s reasoning and whether the Ninth 1 Circuit will continue to require that an ALJ provide ‘clear and convincing’ or ‘specific and 2 legitimate reasons’ in the analysis of medical opinions, or some variation of those standards.”); 3 Thomas S., 2020 WL 5494904, at *2 (“The Ninth Circuit has not yet stated whether it will continue 4 to require an ALJ to provide ‘clear and convincing’ or ‘specific and legitimate’ reasons for rejecting 5 medical opinions given the Commissioner’s elimination of the hierarchy.”). Nevertheless, the new 6 regulations still require the ALJ to explain their reasoning for discounting a medical opinion from 7 a treating or examining physician to allow for meaningful judicial review. See 20 C.F.R. §§ 8 404.1520c(a), 416.920c(a); see also Scott D. v. Comm’r of Soc. Sec., No. C20-5354 RAJ, 2021 WL 9 71679, at *4 (W.D. Wash. Jan. 8, 2021) (noting that “[e]ven under the Commissioner’s new 10 regulations, the ALJ must articulate why he has rejected the opinion” and that “the Ninth Circuit’s 11 ‘specific and legitimate standard’ is merely a benchmark against which the Court evaluates that 12 reasoning”); Titus L.S., 2021 WL 275927, at *7 (noting that “the Commissioner’s new regulations 13 still require the ALJ to explain his or her reasoning and to specifically address how he or she 14 considered the supportability and consistency of the opinion” and “even assuming that the Ninth 15 Circuit’s more stringent requirements are inapplicable here, the Court still must determine whether 16 the ALJ adequately explained how he considered the supportability and consistency factors relative 17 to the physicians’ opinions and whether the reasons were supported by substantial evidence”); 18 Thomas S., 2020 WL 5494904, at *2 (“The Commissioner’s new regulations still require the ALJ 19 to explain his or her reasoning, and to specifically address how he or she considered the 20 supportability and consistency of the opinion” and that “[o]bviously, the ALJ’s reasoning must 21 remain legitimate, meaning lawful or genuine.”). Furthermore, the Court must continue to consider 22 whether the ALJ’s decision is supported by substantial evidence. See Amanda W. v. Comm’r of 23 Soc. Sec.., No. 6:20-CV-00707-YY, 2021 WL 6134369, at *8 (D. Or. Dec. 29, 2021) (citing 24 REVISIONS TO RULES, 82 Fed. Reg. 5844-01 at *5852 (“Courts reviewing claims under our current 25 rules have focused more on whether we sufficiently articulated the weight we gave treating source 26 opinions, rather than on whether substantial evidence supports our final decision.”)); see also 42 27 U.S.C. § 405(g). 28 Therefore, based on the above considerations, the Court will determine whether the ALJ 1 adequately addressed the persuasiveness, including the supportability and consistency, of Dr. 2 Caton’s and Dr. Michiel’s opinions, and whether such assessment is supported by substantial 3 evidence. 4 2. Dr. Caton’s and Dr. Michiel’s Opinions 5 Plaintiff alleges error in the ALJ’s analysis of Dr. Catron’s and Dr. Michiel’s opinions, 6 contending the ALJ essentially ignored large portions of the record regarding Plaintiff’s shoulder, 7 neck, back, anxiety, and depression, and failed to link other portions to his opinion. Plaintiff further 8 contends the ALJ’s reliance on his work history is misplaced because the record shows his current 9 job is limited as performed. The Court agrees with Plaintiff, and finds the ALJ impermissibly 10 cherry-picked the record and failed to link such evidence to his analysis when considering the 11 supportability and consistency of these opinions. This results in a decision that is not based on 12 substantial evidence. 13 Plaintiff submitted an October 2018 opinion from Dr. Caton assessing the following work- 14 related limitations: no repetitive motion of the right shoulder; no lifting above the horizontal; no 15 repetitive motion with the neck; no heavy lifting, pushing, or pulling more than 10 lbs.; and no 16 climbing of ladders. (AR 594.) The ALJ found Dr. Caton’s opinion “partially persuasive,” 17 explaining: [T]he subsequent evidence of record is more consistent with restrictions to a reduced 18 range of light work. As noted above, in May of 2019, an examination demonstrated decreased range of motion of the right shoulder and otherwise intact motor and 19 sensory findings. Moreover, at the hearing, [Plaintiff] testified that he is currently 20 working as a maintenance person at a mobile home park, working four hours a day. He stated that he is on his feet three hours a day and that his duties include pulling 21 weeds, picking up trash, and tending to the swimming pool. 22 (AR 24 (internal citation omitted).) Further, the ALJ found the opinion of Dr. Michiel 23 “unpersuasive,” stating: 24 Although his assessment is supported with the objective findings of his evaluation, the subsequent evidence of record is more consistent with the ability to perform 25 unskilled work. As noted above, treatment records from throughout 2018 and early 2019 consistently noted alert and interactive behavior with a normal affect. 26 Moreover, at the hearing, [Plaintiff] testified that he is currently working as a maintenance person at a mobile home park, working four hours a day. He stated that 27 his duties include pulling weeds, picking up trash, and tending to the swimming 28 pool. 1 (AR 25 (internal citation omitted).) 2 The Court finds that the ALJ’s resolution of these opinions demonstrates an attempt to 3 cherry-pick facts and, as to those facts picked, a failure to articulate a nexus between them and the 4 ALJ’s persuasiveness analysis. See 42 U.S.C. § 423(d)(5)(B) (requiring an ALJ base the decision 5 on “all the evidence available in the [record].”); Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 6 2014) (the court may not affirm where the ALJ “pick[ed] out a few isolated instances of 7 improvement” to support the denial of benefits); Magallanes, 881 F.2d at 753 (The ALJ should 8 “set[] out a detailed and thorough summary of the facts and conflicting clinical evidence, stating 9 his interpretation thereof, and making findings.”); Embrey v. Bowen, 849 F.2d 418, 421–22 (9th 10 Cir. 1988) (“To say that the medical opinions are not supported by sufficient objective findings or 11 are contrary to the preponderant conclusions mandated by the objective findings does not achieve 12 the level of specificity our prior cases have required . . . .”). 13 As of the date of this order, the Court is not aware of any circuit court addressing whether 14 ALJ’s are now allowed to cherry-pick the record in making a supportability or consistency finding, 15 or what kinds of findings explicitly constitute cherry-picking under the new regulations. Numerous 16 district courts across the country have remanded, however, where evidence supporting or consistent 17 with a rejected medical opinion was ignored. See Buethe v. Comm’r of Soc. Sec., No. 2:20-CV- 18 552-KJN, 2021 WL 1966202, at *5 (E.D. Cal. May 17, 2021) (collecting cases).7 Here, as in those 19 cases, there is ample “objective medical evidence” (20 C.F.R. §§ 404.1502(f), 416.902(k)) in the 20 record, from Plaintiff’s “medical sources” (§§ 404.1502(d), 416.902(i)), that stretches across a 21 lengthy treatment period and appears to support the more limiting aspects of the two physicians’ 22 opinions (Drs. Caton and Michiel)—evidence the ALJ (at best) failed to connect to their 23 persuasiveness findings or (at worst) willfully ignored. The ALJ partially discounted Dr. Caton’s 24 7 In contrast to these cases, other district courts have found it entirely appropriate for an ALJ to articulate a cursory 25 rationale on the supportability and consistency factors where there was no evidence in the record to support a medical opinion. See, e.g., Olson v. Saul, 20-cv-672-JDP, 2021 WL 1783136, at *2 (W.D. Wis. May 5, 2021) (recognizing 26 that the ALJ “may not ignore evidence that undermines her conclusions,” but finding that plaintiff “doesn’t point to any such evidence.”); Paula J.S., v. Comm’r, No. 2:20-CV-1002-DWC, 2021 WL 1019939, at *4 (W.D. Wash. Mar. 27 17, 2021) (“Plaintiff claims the ALJ cherry-picked the record[, but] does not point the Court to any examples of alleged omissions.”); Jones v. Berryhill, 392 F. Supp. 3d 831, 339 (M.D. Tenn. 2019) (affirming ALJ’s finding that physician’s 28 opinion was unpersuasive because it was “not supportable or consistent with the record,” where there was no evidence 1 opinion because the “subsequent evidence of record is more consistent with restrictions to a reduced 2 range of light work.” For this finding, the ALJ cites to a single page from the 780-page 3 administrative record: a May 2019 treatment note indicating Plaintiff’s neurological examination 4 showed “[d]ecreased range of motion of the right shoulder “and “[g]rossly intact motor and 5 sensory” findings. (AR 610.) The ALJ does not explain how this single treatment note regarding 6 Plaintiff’s shoulder and neurological findings undermines the functional limitations opined by Dr. 7 Caton, including, for example, those concerning Plaintiff’s neck. To the extent that the ALJ 8 suggests that Plaintiff’s conditions have improved since Dr. Caton’s opinion, the cited treatment 9 note undermines this conclusion, as the finding of decreased range of motion in Plaintiff’s right 10 shoulder appears to be consistent with the restrictions opined by Dr. Caton. (See AR 593.) 11 Laboratory findings from mid-2018 clearly show abnormal results with respect to Plaintiff’s 12 right shoulder, cervical spine, and lumbar spine. (See, e.g., AR 432, 438, 585–86.) The ALJ 13 appears to recognize this, noting multiple records documenting these abnormalities in their 14 summary of the medical evidence. (See AR 22.) Other objective medical evidence in the record, 15 mentioned elsewhere in the opinion but not in conjunction with the ALJ’s persuasiveness analysis, 16 also appear to support Dr. Caton’s opined limitations, demonstrating right rotator cuff arthropathy, 17 an irreparable rotator cuff tear, significant degree of adhesive capsulitis, neck pain with limited 18 range of motion, scoliosis, decreased sensation about the right shoulder, low back tenderness, 19 difficulty squatting, and difficulty getting on and off the examination table. (AR 412, 422, 573, 20 578–79.) However, there is no connection between any of this evidence and the ALJ’s resolution 21 of Dr. Caton’s opinion—only a finding that the “subsequent evidence of record is more consistent 22 with restrictions to a reduced range of light work” predicated on a single treatment record. See, 23 e.g., Mark M. M. v. Saul, No. CV 19-107-M-KLD, 2020 WL 2079288, at *5 (D. Mont. Apr. 29, 24 2020) (finding the ALJ failed to “link purportedly inconsistent evidence with the discounted 25 medical opinion,” relying on Embrey and Magallanes). 26 As to the ALJ’s consideration of Dr. Michiel’s opinion, the subsequent evidence of record 27 is characterized as “more consistent with the ability to perform unskilled work.” This conclusion 28 is based on Plaintiff’s “treatment records from throughout 2018 and early 2019 [that] consistently 1 noted alert and interactive behavior with a normal affect.” The ALJ’s discussion of these treatment 2 records, however, amount to citing repeatedly the same five pages of the record. (See AR 19, 20, 3 23, & 25 citing AR 629, 668, 680, 697, & 724.) These five pages are from the internist’s office 4 who Plaintiff was seeing for treatment of his diabetes, kidney cancer, and right shoulder pain, and 5 include a single “psychiatric” finding as part of a physical examination. (See AR 629, 668, 680, 6 697, & 724.) Notably absent from the ALJ’s decision is any mention, much less discussion, relating 7 these cursory findings, made by an internal medicine doctor without the benefit of a mental status 8 examination, to any particular opinion by Dr. Michiel. For instance, the ALJ did not explain how 9 Plaintiff appearing “alert and interactive [] with a normal affect” contradicts Dr. Michiel’s finding 10 that Plaintiff is severely limited in his ability to maintain attention and concentration to carry out 11 simple job instructions. (See AR 25, 464.) The ALJ “merely states” these observations “point 12 toward an adverse conclusion” but “makes no effort to relate any of these” observations to “the 13 specific medical opinions and findings he rejects.” William H. v. Comm’r of Soc. Sec., No. 3:19- 14 CV-6148-DWC, 2020 WL 5056451, at *7 (W.D. Wash. Aug. 27, 2020) (quoting Embrey, 849 F.2d 15 at 421). “This approach is inadequate.” Id. 16 Finally, regarding his work history, against which the persuasiveness of both doctors’ 17 opinions is measured, Plaintiff testified that in his work as a maintenance person at the mobile 18 home facility, he does not lift more than five pounds and uses a golf cart to get around. (AR 44, 19 54.) According to Plaintiff, he works four hours a day, three of which is spent standing or walking. 20 (AR 45.) Plaintiff also testified that his current boss is not happy with his pace of work activity, 21 which has caused conflict. (AR 57.) Although the ALJ bases his assessment of the persuasiveness 22 of Dr. Caton’s and Dr. Michiel’s opinions in part on the fact that Plaintiff “is currently working as 23 a maintenance person at a mobile home park,” the ALJ makes no mention that the work is 24 performed in the limited and accommodated manner described by Plaintiff. See, e.g., Susan C. v. 25 Kijakazi, No. 20-CV-04324-TSH, 2021 WL 4553585, at *5 (N.D. Cal. Oct. 5, 2021) (finding error 26 where “[t]he ALJ’s decision offers no explanation for how [the plaintiff’s] part-time, assisted work 27 activity is inconsistent with Dr. Wilson’s limitations which . . . were assessed in the context of a 28 full-time, mandatory work schedule.”) cf. Estrella v. Colvin, 174 F. Supp. 3d 1090, 1105 (D. Ariz. 1 2016) (ALJ erroneously relied opinion evidence based on Plaintiff’s work history that failed to 2 discuss or mention that such work was “done under special conditions.”) Yet even if Plaintiff’s 3 work was exactly was as the ALJ described—”pulling weeds, picking up trash, and tending to the 4 swimming pool” (AR 24, 25)—the ALJ does not explain how these activities translate to an RFC 5 assessment whereby Plaintiff is deemed able to, for example, lift and carry 20 pounds occasionally 6 and 10 pounds frequently; sit, stand, and walk for about six hours each in an eight-hour workday; 7 and occasionally reach overhead with his dominant upper extremity (AR 21). See, e.g., Eric J. G. 8 v. Saul, No. CV 20-91-M-KLD, 2021 WL 1186972, at *6 (D. Mont. Mar. 30, 2021) (ALJ erred in 9 finding opinion unpersuasive as inconsistent with Plaintiff’s work history as they failed to specify 10 how the work was inconsistent with the medical opinion, such that the ALJ’s conclusory 11 determination “does not come close” to a detailed and thorough summary of the facts and 12 conflicting clinical evidence, stating ALJ’s interpretation thereof, and making findings, i.e., 13 “legally sufficient reasons supported by substantial evidence for finding a medical opinion 14 unpersuasive”); see also William H., 2020 WL 5056451, at *7. 15 The Court is aware of the general proposition that ALJ’s are to resolve ambiguities and 16 conflicts in the record. Ford, 950 F.3d at 1154. It is also mindful of the deference desired by the 17 agency in promulgating these new regulations. See REVISIONS TO RULES, 82 Fed. Reg. 5844-01 at 18 *5860 (“[The new regulations are] essential for [the agency’s] administration of a massive and 19 complex nationwide disability program where the need for efficiency is self-evident.”). However, 20 the text of the regulations explicitly requires an explanation of how the ALJ considered the 21 supportability and consistency of an opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). 22 Harmonizing this requirement with current Ninth Circuit law prohibiting cherry-picking and 23 requiring a detailed and thorough summary of conflicting evidence, and an interpretation and 24 findings thereon, the ALJ must explicitly address evidence that supports and is consistent with a 25 less-than-persuasive medical opinions, and should this evidence fail to persuade, the ALJ must 26 provide legally sufficient reasons. See Buethe, 2021 WL 196620, at *7; Jones v. Saul, No. 2:19- 27 CV-01273 AC, 2021 WL 620475, at *8 (E.D. Cal. Feb. 17, 2021) (the ALJ cannot “forego 28 articulation of their reason or reasons altogether”); see also Lambert v. Saul, 980 F.3d 1266, 1277 1 (9th Cir. 2020) (“[T]he ALJ must provide sufficient reasoning that allows [for] review.”). This the 2 ALJ did not do. 3 As to the ultimate outcome of Plaintiff’s claim, the Court expresses no opinion as to the 4 level of persuasiveness that should be ascribed to Dr. Caton’s or Dr. Michiel’s opinions. Nor does 5 the Court express what Plaintiff’s RFC ultimately should be. These are for the ALJ to decide. 6 Ford, 950 F.3d at 1154. However, because the ALJ cherry-picked facts and failed to link those 7 facts when resolving the medical opinions, “the proper remedy is remand, where the ALJ may 8 either (a) reaffirm [their] decision after a more thorough explanation of why these opinions were 9 unsupported by and inconsistent with the relevant evidence, or (b) award benefits.” Buethe, 2021 10 WL 1966202, at *7. 11 V. CONCLUSION AND ORDER 12 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 13 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 14 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment 15 in favor of Plaintiff Patrick William Gonzales and against Defendant Kilolo Kijakazi, Acting 16 Commissioner of Social Security. 17 IT IS SO ORDERED. 18 19 Dated: January 27, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28