(SS) Wade v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TERESA ANNE WADE, No. 2:22-cv-01594 CKD 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying an application for Supplemental Security Income (“SSI”) under Title 20 XVI of the Social Security Act (“Act”). The parties have consented to Magistrate Judge 21 jurisdiction to conduct all proceedings in the case, including the entry of final judgment. For the 22 reasons discussed below, the court will grant plaintiff’s motion for summary judgment and deny 23 the Commissioner’s cross-motion for summary judgment. 24 BACKGROUND 25 Plaintiff, born in 1969, applied on February 18, 2020 for SSI, alleging disability beginning 26 January 18, 2020. Administrative Transcript (“AT”) 21, 32. Plaintiff alleged she was unable to 27 work due to fibromyalgia, neck and back problems, irritable bowel syndrome, tendonitis, arthritis, 28 anxiety, and depression. AT 61-62, 216-226. In a decision dated July 7, 2021, the ALJ 1 determined that plaintiff was not disabled.1 AT 21-33. The ALJ made the following findings 2 (citations to 20 C.F.R. omitted): 3 1. The claimant has not engaged in substantial gainful activity since February 18, 2020, the application date. 4 2. The claimant has the following severe impairments: degenerative 5 disc disease of the cervical spine, fibromyalgia, depressive disorder, anxiety disorder, and borderline intellectual functioning. 6 3. The claimant does not have an impairment or combination of 7 impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 8 4. After careful consideration of the entire record, the undersigned 9 finds that the claimant has the residual functional capacity to perform light work except she can occasionally stoop and climb ladders, ropes 10 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the 11 Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to 12 disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an “inability to engage in any substantial gainful activity” due to “a medically 13 determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. 14 See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation: 15 Step one: Is the claimant engaging in substantial gainful 16 activity? If so, the claimant is found not disabled. If not, proceed to step two. 17 Step two: Does the claimant have a “severe” impairment? If 18 so, proceed to step three. If not, then a finding of not disabled is appropriate. 19 Step three: Does the claimant’s impairment or combination 20 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined 21 disabled. If not, proceed to step four. 22 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 23 Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 26 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the 28 burden if the sequential evaluation process proceeds to step five. Id. 1 or scaffolds. The claimant can frequently kneel, crouch, crawl, and climb ramps or stairs, and she can perform work involving simple 2 instructions. The claimant can have only occasional interaction with the public in the work setting, and only brief and superficial 3 interaction with coworkers and supervisors. The claimant cannot perform tandem tasks. 4 5. The claimant is capable of performing past relevant work as an 5 inspector/hand packager. This work does not require the performance of work-related activities precluded by the claimant’s 6 residual functional capacity. 7 7. The claimant has not been under a disability, as defined in the Social Security Act, since February 18, 2020, the date the application 8 was filed. 9 AT 23-33. 10 The ALJ also made the following alternative findings for step five: “The claimant was 11 born [in] 1969 and was 50 years old, which is defined as an individual closely approaching 12 advanced age, on the date the application was filed. The claimant has a limited education.” The 13 ALJ noted that the vocational expert (VE) testified that such an individual, with plaintiff’s RFC, 14 would be able to perform jobs such as marker, housekeeping cleaner and routing clerk, all 15 classified as light unskilled work with a specific vocational preparation (SVP) rating of 2. AT 32- 16 33. Accordingly, the ALJ found that “[i]n addition to past relevant work, there are other jobs that 17 exist in significant numbers in the national economy that the claimant also can perform[.]” AT 18 32. 19 ISSUES PRESENTED 20 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 21 disabled: The ALJ failed to properly evaluate the opinion of a treating physician as to 22 manipulative and other limitations, such that the residual functional capacity was not supported 23 by substantial evidence. 24 LEGAL STANDARDS 25 The court reviews the Commissioner’s decision to determine whether (1) it is based on 26 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 27 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 28 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 1 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 2 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 3 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 4 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 5 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 6 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 7 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 8 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 9 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 10 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 11 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 12 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 13 administrative findings, or if there is conflicting evidence supporting a finding of either disability 14 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 15 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 16 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 17 ANALYSIS 18 A. Medical Opinion 19 Plaintiff asserts that the ALJ erred in evaluating the opinion of treating physician Dr. 20 Bryan Lee, both as to Dr. Lee’s opined manipulative limitations and overall. 21 In January 2020, around the time of the alleged disability onset date, plaintiff began 22 treatment with Dr. Bryan Lee. Dr. Lee diagnosed myofascial pain syndrome and job-related 23 stress, and prescribed medication. AT 429-430. In March 2020, Dr. Lee noted that plaintiff had 24 recently experienced fibromyalgia symptoms and had “myofascial pain along classic tender 25 points of body.” AT 422-423. Dr. Lee continued to treat plaintiff for the next several months. 26 See ECF No. 12-1 at 4-5 (medical history). 27 On March 5, 2020, Dr. Lee filled out a checkbox physical assessment in which he 28 diagnosed plaintiff with fibromyalgia and indicated that she would “frequently” be impaired by 1 her symptoms. AT 391. Dr. Lee opined that plaintiff could sit for four hours and stand/walk for 2 two hours in an eight-hour workday; that she would need to take unscheduled breaks once or 3 twice during the workday; and that she could lift less than 10 pounds frequently and 10-20 4 pounds occasionally. AT 391. With both the right and left hand, she could grasp, turn, and twist 5 objects and reach 25% of the workday, and do fine manipulation 50% of the workday. AT 391. 6 She was likely to be absent from work more than four times a month due to her impairments. AT 7 392. 8 The ALJ found that this opinion “was not persuasive as it was not consistent with a 9 majority of the objective medical evidence. In October of 2020, imaging of the cervical spine 10 demonstrated stable multilevel degenerative disc disease and facet joint degenerative changes.2 11 This opinion has limited internal support, as it was completed on a check-box form with few 12 additions, but it did note pain.3” AT 31. 13 “The ALJ is responsible for translating and incorporating clinical findings into a succinct 14 RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In doing so, 15 the ALJ must articulate a “substantive basis” for rejecting a medical opinion or crediting one 16 medical opinion over another. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); see also 17 Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (“an ALJ cannot in its decision totally 18 ignore a treating doctor and his or her notes, without even mentioning them”). 19 For disability applications filed on or after March 27, 2017, the Commissioner revised the 20 rules for the evaluation of medical evidence at the administrative level. See Revisions to Rules 21 Regarding the Evaluation of Medical Evidence, 82 Fed. Reg 5844-01 (Jan. 18, 2017). Because 22 Plaintiff filed her SSI application on February 18, 2020, it is subject to the new rules for the 23 evaluation of medical evidence. 24 The revised rules provide that adjudicators for the Social Security Administration, 25 including ALJs, evaluate medical opinions according to the following factors: supportability; 26 27 2 Citing AT 806. 28 3 Citing AT 394 (Dr. Lee’s March 5, 2020 mental capacity assessment, noting “myofascial pain”). 1 consistency; relationship with the claimant; specialization; and other factors such as the medical 2 source's familiarity with other evidence in the record or with disability program requirements. 20 3 C.F.R. § 416.920c(c)(1)-(5). The most important of these factors are supportability and 4 consistency. 20 C.F.R. § 416.920c(b)(2). Supportability is the extent to which an opinion or 5 finding is supported by relevant objective medical evidence and the medical source’s supporting 6 explanations. 20 C.F.R. § 416.920c(c)(1). Consistency is the extent to which an opinion or 7 finding is consistent with evidence from other medical sources and non-medical sources, 8 including the claimants themselves. 20 C.F.R. §§ 416.920c(c)(2), 416.902(j)(1). The ALJ will 9 articulate how he considered the most important factors of supportability and consistency, but an 10 explanation for the remaining factors is not required except when deciding among differing yet 11 equally persuasive opinions or findings on the same issue. 20 C.F.R. § 416.920c(b). When a 12 single medical source provides multiple opinions and findings, the ALJ must articulate how they 13 were considered in a single analysis. 20 C.F.R. § 416.920c(b)(1). 14 The new regulations “still require that the ALJ provide a coherent explanation of [her] 15 reasoning” and establish “a minimum level of articulation to be provided in determinations and 16 decisions, in order to provide sufficient rationale for a reviewing adjudicator or court.” Sam- 17 Chankhiao v. Kijakazi, 2:20-cv-0186 DB, 2022 WL 4226170, at *3 (E.D. Cal. Sept. 13, 2022), 18 citing Hardy v. Commissioner, 554 F.Supp.3d 900, 906 (E.D. Mich. 2021). Thus, 19 [e]ven under the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent without 20 providing an explanation supported by substantial evidence. The agency must “articulate ... how persuasive” it finds “all of the 21 medical opinions” from each doctor or other source, 20 C.F.R. § 404.1520c(b), and “explain how [it] considered the supportability 22 and consistency factors” in reaching these findings, id. § 404.1520c(b)(2). 23 Id., citing Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 24 Here, the ALJ found that Dr. Lee’s opinion was “not consistent with a majority of the 25 objective medical evidence,” citing an October 2020 assessment of plaintiff’s cervical spine. This 26 conclusory statement supported by one piece of evidence is, without more, insufficient to 27 discredit Dr. Lee’s entire opinion. The ALJ’s brief discussion of the consistency factor does not 28 1 address the opined limitations on sitting, standing, walking, lifting, manipulating objects with the 2 right and left hands, or the opined need to be absent more than four days a month. Nor does it 3 address “the extent to which [the] opinion or finding is consistent with evidence from other 4 medical sources and non-medical sources, including the claimants themselves.” 20 C.F.R. §§ 5 416.920c(c)(2), 416.902(j)(1). 6 As to the other key factor, supportability, the ALJ wrote that the opinion “has limited 7 internal support, as it was completed on a check-box form[.]” Here again, the ALJ’s decision 8 does not address the supportability of Dr. Lee’s specific findings. See Cox v. Comm’r, No. 1:20- 9 cv-01520-SAB, 2022 WL 3691309, *9 (E.D. Cal. Aug. 25, 2022) (ALJ may not reject medical 10 opinion solely for being in check-box form). Nor does it address “the extent to which an opinion 11 or finding is consistent with evidence from other medical sources and non-medical sources, 12 including the claimants themselves.” 20 C.F.R. §§ 416.920c(c)(2), 416.902(j)(1). 13 Defendant argues that, elsewhere in the decision, the ALJ discussed the evidence 14 concerning plaintiff’s alleged impairments, and that this indirectly satisfied the requirement to 15 “articulate how he considered the most important factors of supportability and consistency” with 16 respect to Dr. Lee’s opinion. Defendant cites Neri v. Comm’r, No. 1:21-cv-01235-SAB, 2022 17 WL 16856160, *17 (E.D. Cal. Nov. 10, 2022), in which the plaintiff argued that “the ALJ fail[ed] 18 to elaborate on or sufficiently cite to the longitudinal record in support of his various findings[,] 19 and his reasons for rejecting [the examining doctor’s] opinion were therefore conclusory.” The 20 court rejected plaintiff’s argument, noting that “the ALJ’s findings and supporting references to 21 the medical and non-medical evidence are provided in greater detail throughout his decision.” Id. 22 The court continued: 23 As the ALJ clearly refers to these same findings during his discussion of Dr. Kurpiers’s opinion, pages later, he need not repeat every single 24 citation to the record he previously made. Thus, when read within the context of his decision in its entirety, this Court finds the ALJ’s 25 decision regarding Dr. Kurpiers’s opinion clearly identifies multiple citations to the record in support of his findings, which appear to 26 fairly reflect the longitudinal history of Plaintiff’s records. 27 Id. The undersigned finds Neri distinguishable, because in that case the ALJ provided multiple 28 1 specific reasons for rejecting Dr. Kupiers’ opinion, including its inconsistency with treatment 2 notes, examination findings, and activities of daily living. The ALJ further explained that the 3 opinion appeared to be based heavily on the subjective reports of the claimant and a third party. 4 Id. at *14. This is considerably more explanation than the ALJ provided in the instant case. 5 The ALJ’s failure to articulate how he considered the key factors of supportability and 6 consistency with respect to Dr. Lee’s opinion was error. See Sam-Chankhiao, 2022 WL 7 4226170, at **3-4 (granting summary judgment for plaintiff where “the ALJ’s vague and 8 conclusory discussion of [medical] opinion fails to discuss the necessary factors of supportability 9 and consistency”) (collecting cases). Accordingly, plaintiff is entitled to summary judgment on 10 this claim. 11 REMEDY 12 With error established, the court has the discretion to remand or reverse and award 13 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded 14 under the “credit-as-true” rule for an award of benefits where: 15 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 16 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 17 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 18 19 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the 20 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when 21 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within 22 the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 23 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative 24 proceedings would serve no useful purpose, it may not remand with a direction to provide 25 benefits.”); Treichler, 775 F.3d at 1105 (“Where . . . an ALJ makes a legal error, but the record is 26 uncertain and ambiguous, the proper approach is to remand the case to the agency.”). 27 Here, the record as a whole creates serious doubt as to whether plaintiff was disabled 28 during the relevant period. The court expresses no opinion regarding how the evidence should 1 | ultimately be weighed, and any ambiguities or inconsistencies resolved, on remand. The court 2 || also does not instruct the ALJ to credit any particular opinion or testimony. The ALJ may 3 | ultimately find plaintiff disabled during the entirety of the relevant period; may find plaintiff 4 || eligible for some type of closed period of disability benefits; or may find that plaintiff was never 5 || disabled during the relevant period, provided that the ALJ’s determination complies with 6 || applicable legal standards and is supported by the record as a whole. 7 Accordingly, this matter will be remanded under sentence four of 42 U.S.C. § 405(g) for 8 | further administrative proceedings. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiffs motion for summary judgment (ECF No. 12) is granted; 11 2. The Commissioner’s motion for summary judgment (ECF No. 14) is denied; and 12 3. This matter is remanded for further proceedings consistent with this order. 13 | Dated: October 3, 2023 / ae □□ / a Ly a 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 |] 2/wade1594.ssi.ckd2 20 21 22 23 24 25 26 27 28