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

UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 MISTY STUBBLEFIELD, No. 1:21-cv-01566-GSA 5 Plaintiff, 6 v. OPINION & ORDER DIRECTING ENTRY 7 OF JUDGMENT IN FAVOR OF KILOLO KIJAKAZI, acting PLAINTIFF AND AGAINST DEFENDANT 8 Commissioner of Social Security, COMMISSIONER OF SOCIAL SECURITY 9 (Doc. 16, 17) Defendant. 10 11 I. Introduction 12 Plaintiff Misty Stubblefield (“Plaintiff”) seeks judicial review of a final decision of the 13 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 14 disability insurance benefits pursuant to Title II of the Social Security Act. The matter is before 15 the Court on the parties’ briefs which were submitted without oral argument to the United States 16 Magistrate Judge.1 Docs. 16, 17. After reviewing the record the Court finds that substantial 17 evidence and applicable law do not support the ALJ’s decision. 18 II. Factual and Procedural Background2 19 On April 1, 2020 Plaintiff applied for disability insurance benefits alleging a disability onset 20 date of March 7, 2020. The application was denied initially on June 11, 2020 and on 21 reconsideration on July 20, 2020. Plaintiff requested a hearing which was held before an 22 Administrative Law Judge (the “ALJ”) on January 5, 2021. AR 35–51. On March 8, 2021 the ALJ 23 issued a decision denying Plaintiff’s application. AR 12–28. The Appeals Council denied review 24 on September 15, 2021. AR 1–6. On October 22, 2021 Plaintiff filed a complaint in this Court. 25 26 27 1 The parties consented to the jurisdiction of a United States Magistrate Judge. See Docs. 6 and 11. 2 The Court has reviewed the relevant portions of the administrative record including the medical, opinion and 28 testimonial evidence about which the parties are well informed, which will not be exhaustively summarized. Relevant portions will be referenced in the course of the analysis below when relevant to the parties’ arguments. III. The Disability Standard 2 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 3 Commissioner denying a claimant disability benefits. “This court may set aside the 4 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 5 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 6 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 7 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 8 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 9 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 10 When performing this analysis, the court must “consider the entire record as a whole and 11 may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social 12 Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the 13 evidence could reasonably support two conclusions, the court “may not substitute its judgment for 14 that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 15 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless 16 error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the 17 ultimate non-disability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 18 To qualify for benefits under the Social Security Act, a plaintiff must establish that 19 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 20 last for a continuous period of not less than twelve months. 42 U.S.C. § 21 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not 22 only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists 23 in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether 24 he would be hired if he applied for work. 25 42 U.S.C. §1382c(a)(3)(B). 26 To achieve uniformity in the decision-making process, the Commissioner has established a 27 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 28 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 2 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 3 gainful activity during the period of alleged disability, (2) whether the claimant had medically 4 determinable “severe impairments,” (3) whether these impairments meet or are medically 5 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 6 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant 7 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 8 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears 9 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to 10 prove that Plaintiff can perform other work in the national economy given her RFC, age, education 11 and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 12 IV. The ALJ’s Decision 13 At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since 14 her amended alleged disability onset date of March 7, 2020. AR 18. At step two the ALJ found 15 that Plaintiff had the following severe impairments: bilateral carpal tunnel syndrome; lateral 16 epicondylitis; degenerative disc disease of the cervical spine; degenerative disc disease of the 17 lumbar spine with radiculopathy and neuropathy; and obesity. AR 18. At step three the ALJ found 18 that Plaintiff did not have an impairment or combination thereof that met or medically equaled the 19 severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 18. 20 Prior to step four the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 21 concluded that Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. 416.967(a) 22 with the following restrictions: after every 45 minutes of sitting stand for 2 minutes while remaining 23 on task at her work station; occasionally climb ramps and stairs; occasional perform postural 24 activities; frequently reach, handle, and finger. AR 18–22. 25 At step four the ALJ found that Plaintiff could perform her past relevant work as a 26 collections clerk. AR 22. Accordingly, the ALJ found that Plaintiff was not disabled at any time 27 since her amended alleged disability onset date of March 7, 2020. AR 22. 28 V. Issues Presented 2 Plaintiff begins the brief with the following statement: 3 The parties hereby submit this joint stipulation for resolution of the issues presented 4 in this case pursuant to the Scheduling Order filed on the docket of the District Court on 4/1/2022 5 Br. at 1, Doc. 16. 6 The scheduling order issued on April 1, 2022 does not require the parties to submit a “joint 7 stipulation for resolution of issues presented,” nor does that requirement exist in any previous 8 scheduling order issued in this case or other social security cas es before this Court in which counsel 9 has made the same introductory statement. Doc. 14. Although the Court previously required parties 10 to exchange confidential letter briefs, the briefs were not to be shared with the Court, and that 11 requirement was eliminated prior to the issuance of the scheduling order in this case. Most 12 importantly, the document Plaintiff submitted is not a “joint stipulation for resolution of the issues 13 presented.” It is Plaintiff’s motion for summary judgment.3 14 What the scheduling order does require, among other things, is a short and separate 15 statement of each of Plaintiff’s legal claims supported by factual and legal citations. Plaintiff does 16 not clearly set forth distinct issues by way of a statement of issues presented, section headings, or 17 any internal organizational structure. The Court will attempt to identify and address the points 18 Plaintiff appears to be making. 19 20 A. Listing 1.04 21 1. Applicable Law 22 At step three of the sequential evaluation, Plaintiff has the burden to establish the existence 23 of an impairment that meets or equals the criteria of an impairment listed in Appendix 1 of the 24 regulations. See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Part 404, Subpart P, Appendix 1. 25 The Social Security Regulations “Listing of Impairments” is comprised of impairments to 26 27 28 3 The motion contains a copied and pasted reproduction of counsel’s letter to the Appeal’s Counsel (See AR 153-58) to which Plaintiff adds the introductory language quoted above. fifteen categories of body systems that are severe enough to preclude a person from performing 2 gainful activity. See Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990); 20 C.F.R. § 3 404.1520(d). Conditions described in the listings are considered so severe that the presumption of 4 5 disability cannot be rebutted. 20 C.F.R. § 404.1520(d). To meet a listing or satisfy medical 6 equivalency of a listing, it is not sufficient for a claimant to have a diagnosis that matches the name 7 of a listed diagnoses; all of the elements under the listing must be met. See Key v. Heckler, 754 8 F.2d 1545, 1549-50 (9th Cir. 1985). 9 2. Analysis 10 Plaintiff questions the ALJs conclusion that Listing 1.04 (disorders of the spine) was not 11 met. Plaintiff begins by block quoting4 the ALJ’s step three finding. With no transition, Plaintiff 12 13 then offers a one paragraph summary of notes from Dr. Newton (the medical examiner in 14 connection with her worker’s compensation claim) concerning Plaintiff’s radicular back pain, 15 postural limitations, mobility limitations, exertional limitations, sensory abnormalities, gait 16 abnormalities, muscle spasms, and positive nerve root tension signs. Br. at 4 (citing Ex. 10F p. 3, 17 8). 18 Plaintiff then contends that the listing5 “may be met” because the listing discusses 19 compromise of a nerve root, and Plaintiff’s MRI report revealed moderate to severe left sided 20 21 foraminal stenosis causing impingement at the exiting L5 nerve root. 22 A claimant will be found disabled under Listing 1.04 if s/he (1) has a disorder of the spine, 23 such as “herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, 24 degenerative disc disease, facet arthritis, [or] vertebral fracture,” (2) which results in “compromise 25 26 4 More accurately, Plaintiff appears to have taken a scanned copy of the ALJ’s decision, captured a screenshot of the 27 the relevant language, and copied and pasted the blurry image into the body of her brief, rather than highlighting the text from an electronic copy, or typing the language out manually. 28 5 Plaintiff actually stated it was listing 2.04, but the relevant listing considered by the ALJ (disorders of the spine) is 1.04. of a nerve root...or the spinal cord,” and (3) is accompanied by the additional requirements set forth 2 under subsections 1.04(A), 1.04(B), or 1.04(C). 20 C.F.R. 404, subpt. P, app. 1, § 1.04 (emphasis 3 added). 4 5 All agree Plaintiff has a disorder of the spine, namely degenerative disc disease. Thus, she 6 meets the first requirement. As for the second requirement, the ALJ found that the evidence of 7 record does not establish compromise of a nerve root. AR 18. According to the regulations 8 “Compromise of a nerve root, sometimes referred to as ‘nerve root impingement,’ is a phrase used 9 when a physical object, such as a tumor, herniated disc, foreign body, or arthritic spur, is pushing 10 on the nerve root as seen on imaging or during surgery.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1. As 11 the ALJ acknowledged at step four, the August 2020 lumbar spine MRI showed moderate to severe 12 13 stenosis causing impingement of the L5 exiting nerve root. AR 904. Thus, it is not clear why the 14 ALJ found that there was no evidence of nerve root compromise when it appears otherwise. See 15 below. 16 In addition to a spinal disorder resulting in compromise of a nerve root, spinal cord or cauda 17 equina, a claimant must also satisfy one of the three alternatives set forth in subsections 1.04(A), 18 1.04(B), and 1.04(C). 19 Subsection 1.04(A) requires: 20 21 Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle 22 weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and 23 supine). 24 Id. § 1.04(A). Subsection 1.04(B) requires: 25 Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue 26 biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or 27 posture more than once every 2 hours 28 Id. § 1.04(B). Subsection 1.04(C) requires: Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on 2 appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 3 1.00B2b. 4 Id. § 1.04(C). 5 The ALJ found there was no evidence of spinal arachnoiditis as specified in 1.04(B), or 6 lumbar spinal stenosis resulting in pseudoclaudication as specified in 1.04(C). Plaintiff does not 7 contend otherwise, and there do not appear to be any findings in the record that would substantiate 8 9 spinal arachnoiditis which is defined as “‘inflammation of the arachnoid membrane,’ a membrane 10 that surrounds spinal cord nerves, ‘often without involvement of the subjacent subarachnoid 11 space.’” Smith v. Colvin, 2015 WL 248281, at *4 n.3 (C.D. Cal., Jan. 20, 2015) (quoting Stedman's 12 Medical Dictionary arachnoid, arachnoiditis (27th ed. 2000)). 13 With respect to 1.04(C), Plaintiff’s MRI did show lumbar spinal stenosis, but there do not 14 appear to be any clinical findings in the record to substantiate pseudoclaudication, associated 15 weakness, or inability to ambulate effectively as required by 1.04(C). Plaintiff contends that Dr. 16 17 Newton’s examination “documents” a variety of deficiencies including “walking with a limp.” Br. 18 at 4 (citing AR 891). That is incorrect. The cited section of Dr. Newton’s report did not “document” 19 anything objectively. Rather, that section reflects “PRESENT COMPLAINTS (as reported by the 20 applicant to the historian).” AR 890 (emphasis in original). Later in his report, Dr. Newton did 21 objectively document various examination findings related to gait, but all were normal save for the 22 claimant’s complaint of heel pain when walking on heels. AR 895. 23 24 Neither Plaintiff nor the ALJ addressed subsection 1.04(A) and it’s requirements of 1) 25 neuro-anatomic distribution of pain, 2) limitation of motion of the spine, 3) motor loss (atrophy 26 with associated muscle weakness or muscle weakness), 4) accompanied by sensory or reflex loss 27 and, 5) if there is involvement of the lower back, positive straight-leg raising test (sitting and 28 supine). Plaintiff did offer a scattershot recitation of findings purportedly “documented” by Dr. Newton such as numbness and weakness, though Plaintiff did not make any connection between 2 those findings and Listing 1.04(A). Moreover, numbness and weakness were not objectively 3 documented. As discussed above, Plaintiff relies on the portion of Dr. Newton’s report that merely 4 5 documented Plaintiff’s subjective, self-reported history to the historian. AR 890. In contrast, the 6 notes from Dr. Newton’s objective examination reflects full motor strength throughout, normal 7 sensation, and normal reflexes. AR 899–900. Thus, the examination findings do not satisfy 8 1.04(A). 9 In sum, the ALJ erred at step three in finding no nerve root compromise despite 10 acknowledging at step four that an MRI showed L5 nerve root impingement caused by moderate 11 to severe foraminal stenosis. The ALJ further erred in failing to discuss subsection 1.04(A). These 12 13 two errors, together with the analysis at step three, suggest the ALJ gave insufficient consideration 14 to the requirements of listing 1.04 and how these would apply in this case. 15 Claimants’ frequently assert that they meet Listing 1.04 based on common MRI findings of 16 disc degeneration, bulging discs, stenosis, or similar finding, which are nearly unavoidable with 17 age.6 As courts have observed, these findings do not satisfy the threshold requirement of nerve root 18 compromise. See, e.g., McKenzie v. Commissioner of Social Security, 2020 WL 916872, at *4 19 (E.D. Cal., 2020) (finding no “nerve root compromise” as required by listing 1.04 where the MRI 20 21 results showed only spinal stenosis and compression of the fat surrounding the nerve root, but no 22 compression or impingement of the nerve root itself); Schrader v. Colvin, 2015 WL 1061681, at *8 23 (C.D. Cal., 2015) (finding no nerve root compromise where MRI report described narrowing of the 24 disc space but no compression on the nerve root itself). 25 26 6 The incidence of lumbar degenerative disc disease in the general population is 30% by age 35 and 90% by age 60. 27 https://www.neurosurgery.columbia.edu/patient-care/conditions/degenerative-disc-disease Sciatica is also quite common, with a lifetime incidence as high as 40%. 28 https://www.health.harvard.edu/pain/sciatica-of-all-the-nerve However, MRI results in these types of cases can specify that a nerve root is in fact impinged 2 or compressed, and here the ALJ was incorrect in concluding otherwise. See, e.g. Kallenbach v. 3 Berryhill, 766 F. App'x 518 (9th Cir. 2019) (finding the ALJ erred in finding no nerve root 4 5 compromise where MRI results did specify nerve root impingement, but the error was nonetheless 6 harmless because there was no evidence of associated motor loss, reflex loss, sensory loss, and 7 positive straight leg raise as required by 1.04(A)). 8 If the ALJ’s assumption was that there is some underlying severity requirement for the 9 impingement or compression to constitute a nerve root compromise, this assumption runs contrary 10 to the plain language of the regulation: 11 Compromise of a nerve root, sometimes referred to as ‘nerve root impingement,’ is 12 a phrase used when a physical object, such as a tumor, herniated disc, foreign body, 13 or arthritic spur, is pushing on the nerve root as seen on imaging or during surgery. It can occur when a musculoskeletal disorder produces irritation, inflammation, or 14 compression of the nerve root(s) as it exits the skeletal spine between the vertebrae. Related symptoms must be associated with, or follow the path of, the affected nerve 15 root(s). 16 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (emphasis added). 17 Thus, “Compromise” is described in such unremarkable terms (including irritation, 18 inflammation, or compression) that it suggests the threshold is quite low. What makes Listing 1.04 19 difficult to meet is that the compromise of the nerve root, cauda equina, or spinal cord must manifest 20 21 rather profoundly, as in one of the three manners specified in subsections (A) through (C), which 22 would not happen in the absence of severe compromise of a nerve root, cauda equina, or spinal 23 cord. Hence an ALJ errs when too quickly finding the threshold requirement of nerve root 24 compromise is not met, dispensing with the step three analysis and, in so doing, excusing the 25 obligation of analyzing the dense technical requirements of subsections (A) through (C), which 26 often require a detailed read through progress notes and physical examinations. Those subsections 27 28 are the real driving force behind listing 1.04. Notwithstanding, there is no basis here to find the ALJ’s errors harmful given: 1) Plaintiff 2 fails to address the requirements of any of the three subsections quoted above, and 2) the only 3 examination Plaintiff cites (Dr. Newton’s September 28, 2020 examination) does not contain 4 5 findings that satisfy any of the three subsections (despite Plaintiff’s unverified reported symptoms 6 of weakness and gait disturbance to the historian), and 3) there do not appear to be any examination 7 findings in the record that would satisfy any of the three subsections, though the Court has no 8 obligation to scour the record in search of the same where Plaintiff made no attempt to do so. 9 Plaintiff did not identify the two errors in the ALJ’s step three analysis, did not attempt to 10 identify any errors in the ALJ’s step three analysis, and does not appear confident in the proposition 11 that listing 1.04 was in fact met when Plaintiff merely asserts that it “may” have been met given 12 13 the existence of nerve root compromise (which, again, is a fairly unremarkable threshold finding 14 that does not satisfy listing 1.04 unless one of the three subsections quoted above is met).7 15 B. Dr. Newton’s Opinion 16 1. Applicable Law 17 Before proceeding to step four, the ALJ must first determine the claimant’s residual 18 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2 19 20 21 7 Intermixed with Plaintiff’s discussion of Dr. Newton’s examination and opinion, and listing 1.04, Plaintiff offered various discussion about the ALJ’s duty to identify clear and convincing reasons before rejecting a claimant’s 22 testimony. The discussion is a bit disjointed because counsel appears to have copied and pasted the paragraphs and pages from his Appeal’s Council letter in the wrong order (the letter he repurposed for use as his motion for summary 23 judgment). In any event, the discussion does not identify 1) what specific pieces of testimony should have been credited as true, 2) what physical or mental restrictions would result, 3) how those restrictions would differ from those identified 24 in the RFC, 4) what reasoning the ALJ offered on the subject, or 5) why that reasoning was deficient. The discussion does not get to the type of analysis that is required to meet Plaintiff’s burden of identifying harmful error with respect 25 to the ALJ’s handling of her subjective statements. Granted, the ALJ did offer a boilerplate conclusion when stating that “the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not 26 entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” But this is the same verbatim boilerplate finding set forth in virtually every ALJ decision, and simply 27 describing it as such is not a compelling or novel strategy, nor does it excuse Plaintiff from acknowledging and discussing the remainder of the ALJ’s decision. See Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 28 1994) (“We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim, particularly when, as here, a host of other issues are presented for review”) (citation omitted). (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations” 2 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 3 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 4 5 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 6 A determination of residual functional capacity is not a medical opinion, but a legal decision 7 that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC is not a 8 medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t is 9 the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 10 capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so, the ALJ must 11 determine credibility, resolve conflicts in medical testimony and resolve evidentiary ambiguities. 12 13 Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). 14 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record 15 such as medical records, lay evidence and the effects of symptoms, including pain, that are 16 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 17 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical 18 and other evidence). “The ALJ can meet this burden by setting out a detailed and thorough 19 summary of the facts and conflicting evidence, stating his interpretation thereof, and making 20 21 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 22 F.2d 1403, 1408 (9th Cir. 1986)). The RFC need not mirror a particular opinion; it is an assessment 23 formulated by the ALJ based on all relevant evidence. See 20 C.F.R. §§ 404.1545(a)(3). 24 For applications filed on or after March 27, 2017, the new regulations eliminate a hierarchy 25 of medical opinions, and provide that “[w]e will not defer or give any specific evidentiary weight, 26 including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), 27 28 including those from your medical sources.” 20 C.F.R. § 404.1520c(a). Rather, when evaluating any medical opinion, the regulations provide that the ALJ will consider the factors of supportability, 2 consistency, treatment relationship, specialization, and other factors. 20 C.F.R. § 404.1520c(c). 3 Supportability and consistency are the two most important factors and the agency will articulate 4 5 how the factors of supportability and consistency are considered. Id. 6 On April 22, 2022, the Ninth Circuit addressed whether the specific and legitimate 7 reasoning standard is consistent with the revised regulations, and clarified what explanatory 8 obligations still remain: 9 The revised social security regulations are clearly irreconcilable with our caselaw 10 according to special deference to the opinions of treating and examining physicians on account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) 11 (“We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) ..., including those from your medical sources.”). 12 Our requirement that ALJs provide “specific and legitimate reasons” for rejecting a 13 treating or examining doctor's opinion, which stems from the special weight given to such opinions, see Murray, 722 F.2d at 501–02, is likewise incompatible with the 14 revised regulations. Insisting that ALJs provide a more robust explanation when discrediting evidence from certain sources necessarily favors the evidence from 15 those sources—contrary to the revised regulations. . . . 16 Even under the new regulations, an ALJ cannot reject an examining or treating 17 doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence. The agency must “articulate ... how persuasive” 18 it finds “all of the medical opinions” from each doctor or other source, 20 C.F.R. § 404.1520c(b), and “explain how [it] considered the supportability and consistency 19 factors” in reaching these findings, id. § 404.1520c(b)(2). 20 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 21 2. Analysis 22 On September 28, 2020, Dr. Newton performed a “qualified medical re-evaluation” of the 23 24 Plaintiff in connection with a workers’ compensation claim. AR 889–912. Plaintiff emphasizes 25 Dr. Newton’s opinion that Plaintiff had the following limitations due to impairments of the cervical 26 spine, lumbar spine, bilateral elbows, and bilateral wrists: lift 10 lbs; no prolonged overhead work; 27 no repetitive forceful gripping or grasping; 10 minutes rest for every 50 minutes of typing or writing 28 (but she can keyboard, grasp, push and pull 4 to 6 hours in an eight hour day); no repetitive bending, twisting, squatting or turning (but she can forward bend and twist 1-2 hours a day); she should work 2 at an ergonomically designed workstation; she had no restrictions on standing, walking, sitting, or 3 climbing. AR 910. 4 5 The ALJ offered the following discussion of the state agency opinions, followed by Dr. 6 Newton’s opinion: 7 The opinions of the state agency physical consultants are less persuasive. In May and July 2020, the state agency physical consultants determined that the claimant 8 can lift and/or carry 20 pounds, and frequently lift and/or carry 10 pounds; can stand, 9 sit or walk for six hours in an eight-hour workday ; and, can frequently reach overhead, and frequently handle and finger. (1A/6-8; 3A/6-8) These opinions are 10 not consistent with the claimant’s latest imaging of her back impairment: In August 2020, imaging of the lumbar spine showed advanced neural foraminal narrowing 11 and disc osteophyte complex causing impingement of the existing nerve root. (10F/16) Electro-diagnostic studies of the lower extremities demonstrated mild 12 innervated denervation. (10F/15) These diagnostic studies show that the claimant 13 has a more restrictive residual functional capacity. 14 On the other hand, the opinions of Dr. Peter Newton are persuasive. In July and September 2020, Dr. Peter Newton limited the claimant from lifting more than ten 15 pounds, with no repetitive forceful gripping, and resting ten minutes, for every 50 minutes of typing. (10F/22; 9F/23) The claimant was further limited to no repetitive 16 bending, stooping, twisting, squatting or turning. Id. The claimant had no 17 restrictions on standing, walking, sitting, and climbing, but she had restrictions on forward bending, twisting, keyboarding, grasping and pushing or pulling. (10F/23) 18 Limiting the claimant to a less-than-sedentary range of work is supported by the record of the claimant’s diagnostic study showing severe median nerve neuropathy 19 in September 2019. (10F/16) It is consistent with the record that the claimant has reached maximum medical improvement. (10F/17). 20 21 AR 21 (emphasis added). 22 Despite purporting to find Dr. Newton’s opinion persuasive and reciting the restrictions 23 identified therein, the ALJ did not include many of those restrictions in the RFC. The ALJ 24 formulated an RFC which restricted Plaintiff to: sedentary work; after every 45 minutes of sitting 25 stand for 2 minutes while remaining on task at her work station; occasionally climb ramps and 26 stairs; occasional perform postural activities; frequently reach, handle, and finger. AR 18–22. 27 28 The ALJ adopted the state agency physicians’ opinions as to frequent reaching, handling, and fingering (despite finding those opinions less persuasive) and was more restrictive in the 2 remaining respects, restricting Plaintiff to the sedentary exertional level rather than light. 3 The ALJ adopted Dr. Newton’s opinion regarding 10 pound lifting capacity (the most 4 5 required by sedentary work), and was even more restrictive than Dr. Newton’s opinion with respect 6 to standing and walking. Further, the ALJ partially but not entirely, embraced Dr. Newton’s 7 articulated restrictions regarding postural activities, finding Plaintiff could perform all postural 8 activities occasionally (defined as up to 1/3 of an 8-hour day), whereas Dr. Newton restricted 9 forward bending and twisting to 1-2 hours (which is not quite 1/3 of an 8-hour day). The ALJ 10 assessed no more than frequent handling, reaching, and fingering (i.e. up to 2/3 of an 8-hour day, 11 which would fall within the 4-6 hour window that Dr. Newton opined Plaintiff could perform the 12 13 related activities of keyboarding and grasping). 14 The ALJ did not, however, adopt Dr. Newton’s identified prohibitions on repetitive postural 15 activities and repetitive forceful gripping/grasping, or the restriction concerning a 10 minute break 16 for every 50 minutes of typing, opting instead for a 2 minute break after every 45 minutes of sitting 17 but while remaining on task at her work station. 18 Dr. Newton’s worker’s compensation evaluation was quite lengthy and detailed and 19 addressed matters not often addressed by the RFC questionnaires submitted in the social security 20 21 context. However, an ALJ “may not disregard a physician’s medical opinion simply because it was 22 initially elicited in a state workers’ compensation proceeding, or because it is couched in the 23 terminology used in such proceedings.” Booth v. Barnhart, 181 F. Supp. 2d 1099, 1103 (C.D. Cal. 24 2002). Rather, the ALJ must evaluate workers’ compensation opinions just as he or she would 25 evaluate any other medical opinion and must “translate” workers’ compensation terminology into 26 Social Security terminology to accurately assess the implications of those opinions for the Social 27 28 Security disability determination. Id.; Soria v. Berryhill, No. 1:18-CV-00089-SKO, 2019 WL 2448435, at *11 (E.D. Cal. June 12, 2019); Herlinda C. v. Saul, No. CV 19-2730 AGR, 2020 WL 2 6287716, at *4 (C.D. Cal. Oct. 27, 2020). 3 Although the ALJ did not overtly reject Dr. Newton’s opinion (and did acknowledge and 4 5 incorporate some of the restrictions identified therein), the ALJ omitted the remainder without 6 discussion. It is not reasonable to expect the ALJ to capture every subtlety and nuance in the 7 opinion. Nor must the ALJ attempt to give meaning to vague restrictions such as the prohibition 8 on “prolonged overhead work.” But the 10 minute break for every 50 minutes of typing is concrete 9 and there is no reason to conclude that it is not readily transferable to the RFC. 10 Defendant emphasizes that the RFC is not a medical opinion but an administrative finding 11 reserved the commissioner, one which need not mirror any opinion. See 20 C.F.R. §404.1545(a). 12 13 Defendant also argues that Plaintiff relies “on a highly cherry-picked view of Dr. Newton’s 14 opinion” in underscoring the restrictions he identified while ignoring his conclusion that she could 15 return to work with an ergonomic work station and had no restrictions on standing, walking or 16 sitting. Further, Defendant emphasizes that the ALJ assessed an RFC more restrictive than the 17 medical opinions in several respects. 18 The fact that the ALJ included in the RFC some restrictions more stringent than Dr. 19 Newton’s (such as sitting, standing, and walking duration) does not necessarily justify the exclusion 20 21 of other restrictions if those restrictions were independently justified. Additionally, Dr. Newton’s 22 conclusion that she could return to work with the restrictions he identified8 is irrelevant if the ALJ 23 24 8 The ultimate conclusion that Plaintiff could return to work is an example of the type of finding in the workers’ 25 compensation context that likely cannot be mechanically applied in the social security context. It appears to be predicated at least in part on wholly unique considerations such as the “computerized assessment of the applicant’s 26 total whole body impairment” broken down in percentages by body part, and the allocation of the claimant’s impairments based on what caused those impairments (such as the lumbar spine impairment caused 50% by “obesity- 27 appropriate degenerative changes and normal activities of daily living” and 50% by work trauma). AR 906. Had Dr. Newton’s Qualified Medical Re-Evaluation ultimately concluded that Plaintiff could not return to her work, the 28 Commissioner would assuredly contend (and has contended in the past) that the conclusion is inapplicable because disability under workers’ compensation law is determined using an entirely different standard. erroneously excluded those restrictions. Further, the fact that the ALJ stated the opinion was 2 persuasive and mirrored it in some (or even most) respects does not permit the rejection of other 3 restrictions without comment. 4 5 Here, the ALJ notably found Dr. Newton’s opinion persuasive and found the opinions of 6 the state agency physicians less so (without identifying any exceptions). The ALJ made that finding 7 particularly in light of Plaintiff’s “severe median nerve neuropathy” and her spinal pathology, 8 conditions which could just as easily justify including additional restrictions Dr. Newton identified. 9 This may suggest that the ALJ’s intention was to incorporate those restrictions into the RFC, yet 10 the ALJ did not entirely do so. 11 Hair splitting, perhaps, and this may not have impacted the conclusion that Plaintiff could 12 13 perform her past relevant work. For example, the distinction between Dr. Newton’s restriction of 14 1-2 hours of forward bending, versus the ALJ’s restriction of all postural activities to “occasional” 15 which strictly construed means up to 1/3 of an 8-hour day, or 2.67 hours.9 However, Dr. Newton 16 identified restrictions that were potentially outcome determinative such as the restriction of a 10- 17 minute break every 50 minutes of keyboarding versus the ALJ’s restriction of a 2-minute break 18 every 45 minutes of sitting but while remaining at her workstation and remaining on task. These 19 are quite different restrictions. Dr. Newton’s restriction accommodates her carpal tunnel syndrome 20 21 and associated median nerve neuropathy, whereas the ALJ’s does not. Given the importance of the 22 capacities of handling and fingering in sedentary occupations10 (and the ALJ’s own emphasis of 23 “severe median nerve neuropathy” as one of the two specific reasons for rejecting the state agency 24 opinions and crediting Dr. Newton’s), the ALJ ought to have clarified her intentions and reasoning 25 26 9 But SSR 83-10 states that occasional means “from very little up to 1/3 of the time,” and later states that it equates to 27 “about 2 hours of an eight hour work day.” 10 See SSR 96-9 (“Any significant manipulative limitation of an individual's ability to handle and work with small 28 objects with both hands will result in a significant erosion of the unskilled sedentary occupational base” . . . “Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.”). vis-à-vis Dr. Newton’s identified restriction because the ALJ did not ultimately encapsulate that 2 restriction. 3 Dr. Newton’s detailed findings and associated opinions were specially tailored to each of 4 5 her body parts and associated impairments (such as carpal tunnel and associated median nerve 6 neuropathy). Those findings and opinions were uniquely relevant as to what extent and under what 7 precise set of circumstances she could return to her past relevant work as a collections clerk for 8 Kern county. The non-disability finding here was predicated on a finding that Plaintiff could return 9 to that specific job. Thus, where a physician has already given tremendous attention to that precise 10 issue, the restrictions identified in his opinion ought to have been addressed more thoroughly. 11 VI. Conclusion and Remand for Further Proceedings 12 13 In conclusion, at a minimum the ALJ ought to have identified the difference between Dr. 14 Newton’s opinion and the ultimate RFC, and clarified whether the intention was to include or 15 exclude the restrictions therein and why (including repetitive postural activities, no repetitive 16 forceful gripping, grasping; and 10 minutes rest for every 50 minutes of typing or writing), or posed 17 those restrictions to the VE in one of the ALJ’s alternative hypotheticals to ascertain whether their 18 inclusion would have affected Plaintiff’s ability to perform her past work as a collections clerk. 19 Remand is thus appropriate for the ALJ to do so. See Benecke v. Barnhart, 379 F.3d 587, 595 20 21 (9th Cir. 2004) (“Generally when a court . . . reverses an administrative determination, the proper 22 course, except in rare circumstances, is to remand to the agency for additional investigation or 23 explanation.”). 24 VII. Order 25 For the reasons stated above, the Court finds that substantial evidence and applicable law 26 do not support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal 27 28 from the administrative decision of the Commissioner of Social Security is granted. The Clerk of Court is directed to enter judgment in favor of Plaintiff Misty Stubblefield and against Defendant 2 Kilolo Kijakazi, acting Commissioner of Social Security. 3 IT IS SO ORDERED. 4 5 Dated: February 21, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28