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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE ANTONIO MARTINEZ, Case No. 1:20-cv-00555-HBK 12 Plaintiff, OPINION AND ORDER TO REMAND CASE TO COMMISSIONER2 13 v. (Doc. No. 14) 14 KILOLO KIJAKAZI,1 COMMISSIONER OF SOCIAL 15 SECURITY 16 Defendant. 17 18 19 Jose Antonio Martinez (“Plaintiff”) seeks judicial review of the final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 supplemental security income under the Social Security Act. (Doc. No. 1). The matter is 22 currently before the Court on the parties’ briefs, which were submitted without oral argument. 23 (Doc Nos. 14, 15, 17). For the reasons stated, the Court orders this case REMANDED for further 24 administrative proceedings. 25 26 1 This action was originally filed against Andrew Shaw in his capacity as the Commissioner of Social Security. (See Doc. No 1 at 1). The Court substituted Kilolo Kijakazi, who has since been appointed the 27 Acting Commissioner of Social Security, as the defendant. See Fed. R. Civ. P. 25(d). 2 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. 28 §636(c)(1). (Doc. No. 18). 1 I. JURISDICTION 2 Plaintiff filed for supplemental security income on September 15, 2016. (AR 172-77). 3 Benefits were denied initially (AR 64-77), and upon reconsideration (AR 102-04). Plaintiff 4 appeared before Administrative Law Judge Ruxana Meyer (“ALJ”) on January 7, 2019. (AR 41- 5 63). Plaintiff was represented by counsel and testified at the hearing. (Id.). The ALJ issued an 6 unfavorable decision on March 15, 2019 (AR 16-34), and the Appeals Council denied review on 7 February 19, 2020 (AR 1-3). The matter is now before this Court pursuant to 42 U.S.C. § 8 1383(c)(3). 9 II. BACKGROUND 10 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 11 decision, and the briefs of the Plaintiff and Commissioner. Only the most pertinent facts are 12 summarized here. 13 Plaintiff was 30 years old at the time of the hearing. (AR 43). Plaintiff testified that he 14 graduated from high school but was in special education from fourth grade through high school. 15 (Id.) Plaintiff has no work history. (AR 45). Plaintiff spends his time playing video games and 16 testified that he can spend up to 16 hours a day playing video games. (AR 47-48). For exercise, 17 Plaintiff will sometimes walk up to five hours a day. (AR 49-50). Plaintiff testified that he is on 18 various prescription medications, including medications to treat his high blood pressure and lower 19 his triglycerides and cholesterol. (AR 51). Plaintiff explained that he likes to read but needs to 20 take a break every ten to fifteen minutes. (AR 55-56). Plaintiff regularly has to re-read 21 something from the beginning in order to understand it. (AR. 56). 22 III. STANDARD OF REVIEW 23 A district court’s review of a final decision of the Commissioner of Social Security is 24 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 25 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 26 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 27 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 28 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 1 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 2 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 3 consider the entire record as a whole rather than searching for supporting evidence in isolation. 4 Id. 5 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 6 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 7 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 8 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 9 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 10 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 11 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 12 U.S. 396, 409-10 (2009). 13 III. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 14 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 15 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 16 activity by reason of any medically determinable physical or mental impairment which can be 17 expected to result in death or which has lasted or can be expected to last for a continuous period 18 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment 19 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 20 considering his age, education, and work experience, engage in any other kind of substantial 21 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 22 The Commissioner has established a five-step sequential analysis to determine whether a 23 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 24 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the 25 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 26 claimant is not disabled. 20 C.F.R. § 416.920(b). 27 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 28 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 1 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 2 impairments which significantly limits [his or her] physical or mental ability to do basic work 3 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s 4 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 5 claimant is not disabled. 20 C.F.R. § 416.920(c). 6 At step three, the Commissioner compares the claimant’s impairment to severe 7 impairments recognized by the Commissioner to be so severe as to preclude a person from 8 engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as 9 severe or more severe than one of the enumerated impairments, the Commissioner must find the 10 claimant disabled and award benefits. 20 C.F.R. § 416.920(d). 11 If the severity of the claimant’s impairment does not meet or exceed the severity of the 12 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 13 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 14 ability to perform physical and mental work activities on a sustained basis despite his or her 15 limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 16 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 17 claimant is capable of performing work that he or she has performed in the past (past relevant 18 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant 19 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If 20 the claimant is incapable of performing such work, the analysis proceeds to step five. 21 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 22 claimant is capable of performing other work in the national economy. 20 C.F.R. § 23 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational 24 factors such as the claimant’s age, education, and past work experience. 20 C.F.R. § 25 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 26 find that the claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of 27 adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 28 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 1 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 2 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 3 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 4 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 5 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 6 IV. ALJ’S FINDINGS 7 The ALJ followed the five-step sequential evaluation process. At step one, the ALJ found 8 that Plaintiff had not engaged in any substantial gainful activity since September 1, 2016, the 9 application date. (AR 21). At step two, the ALJ found that Plaintiff had a severe medically 10 determinable mental impairment, which was a history of learning disorder. (AR 21-22). The 11 ALJ found the Plaintiff had a history of syphilis, sexually transmitted disease, herpes simplex 12 virus, hypertension, asthma, and allergies but concluded these conditions did not impose a 13 significant limitation on the Plaintiff’s ability to perform work-related activities. (Id.). At step 14 three, the ALJ found that Plaintiff does not have an impairment or combination of impairments 15 that meets or medically equals the severity of a listed impairment. (AR 22-23). The ALJ 16 proceeded to analyze Plaintiff’s RFC and found that Plaintiff had the RFC “to work at all 17 exertional levels (20 CFR 416.967), except he is limited to performing work that needs little or no 18 judgment to do simple duties that may be learned on the job or in a short period of time.” (AR 19 23). At step four, the ALJ that Plaintiff has no past relevant work. (AR 33). At step five, the 20 ALJ found, considering Plaintiff’s age, education, work experience, and residual functional 21 capacity, that “there jobs that exist in significant numbers in the national economy that [Plaintiff] 22 can perform.” (AR 33). On that basis, the ALJ concluded that Plaintiff was not disabled, as 23 defined in the Social Security Act, since September 1, 2016, the date the application was filed. 24 (Id.). 25 V. ISSUES 26 The Plaintiff seeks judicial review of the Commissioner’s final decision denying him 27 supplemental security income benefits under Title XVI of the Social Security Act. (Doc. No. 1). 28 Plaintiff raises the following issues for this Court’s review: 1 1. Whether the ALJ properly rejected Plaintiff’s subjective complaints; 2 2. Whether the ALJ erred by failing to weigh the opinion evidence from Plaintiff’s sister; 3 3. Whether the ALJ properly rejected Dr. Damania’s opinion; and 4 4. Whether the ALJ properly rejected the opinion from Mr. C. Guzman, P.A. 5 VI. DISCUSSION 6 A. Plaintiff’s Subjective Complaints 7 When evaluating a claimant’s testimony regarding subjective pain or symptoms, an ALJ 8 must conduct a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 9 First, the ALJ must determine whether there is “objective medical evidence of an underlying 10 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 11 Id. (internal quotation marks omitted). “The claimant is not required to show that his impairment 12 could reasonably be expected to cause the severity of the symptom he alleged; he need only show 13 that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 14 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 15 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the 16 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 17 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d 18 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are 19 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 20 undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 21 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a 22 credibility determination with findings sufficiently specific to permit the court to conclude that 23 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and convincing 24 [evidence] standard is the most demanding required in Social Security cases.” Garrison v. 25 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 26 F.3d 920, 924 (9th Cir. 2002)). 27 Finally, while the ALJ is not required to perform a line-by-line analysis of the claimant’s 28 testimony, the ALJ is still required to do more than offer “non-specific conclusions that 1 [claimant’s] testimony was inconsistent with her medical treatment.” Lambert v. Saul, 980 F.3d 2 1266, 1277 (9th Cir. 2020). Additionally, when evaluating a claimant’s testimony, “providing a 3 summary of medical evidence…is not the same as providing clear and convincing reasons for 4 finding the claimant’s testimony not credible.” Id. at 1278 (quoting Brown-Hunter v. Colvin, 806 5 F.3d 487 at 494 (9th Cir. 2015)). When considering plaintiff’s symptom claims, the ALJ must 6 specifically identify the statements found as not credible, and the evidence that allegedly 7 undermines those statements. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “To 8 ensure that our review of the ALJ’s credibility determination is meaningful, and that the 9 claimant’s testimony is not rejected arbitrarily, we require the ALJ to specify which testimony she 10 finds not credible, and then provide clear and convincing reasons, supported by the evidence in 11 the record, to support that credibility determination.” Brown-Hunter, 806 F.3d at 494 (finding the 12 ALJ did not specifically identify any inconsistencies between the claimant’s testimony and the 13 record; rather, “she simply stated her non-credibility conclusion and then summarized the medical 14 evidence supporting her RFC determination.”). The ALJ may discredit plaintiff’s symptom 15 claims because the symptom claims are inconsistent with plaintiff’s daily activities. Molina v. 16 Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) superseded on other grounds by 20 C.F.R. § 17 404.1502(a); see also Morgan v. Commissioner of the SSA., 169 F.3d 595, 600 (9th Cir. 1999). 18 Here, the ALJ found Plaintiff’s “medically determinable impairments could reasonably be 19 expected to cause some of the alleged symptoms.” (AR 25). However, the ALJ found that 20 “[Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these 21 symptoms are not entirely consistent with the medical evidence and other evidence in the record 22 for the reasons explained in this decision.” Id. Specifically, the ALJ found as follows: 23 Based on my review of the entire record and the hearing testimony, I conclude the claimant’s subjective allegations of debilitating 24 medical and mental conditions causing limitations that would preclude all work activity are not supported by the objective 25 evidence. His testimony at the hearing was not persuasive or consistent with the objective evidence such as the benign physical 26 examination findings throughout the record. His activities of daily living are inconsistent with impairment related limitations that 27 preclude all work activity. 28 (AR 33). 1 In support of this finding, the ALJ gave a thorough summary of Plaintiff’s medical history 2 along with summaries of different examinations connected to Plaintiff’s claim. (AR 21-22, 25- 3 32). Plaintiff takes issue with the ALJ rejecting his subjective complaints by just summarizing 4 his medical history and argues that the ALJ’s summary does not provide clear and convincing 5 reasons for discounting Plaintiff’s subjective complaints. (Doc. No. 14 at 13-14); see Brown- 6 Hunter, 806 F.3d at 494. 7 The Ninth Circuit has consistently ruled that a summary of a claimant’s medical history is 8 not the same as providing clear and convincing reasons for rejecting a claimant’s symptom 9 testimony. See Lambert, 980 F.3d at 1278; see also Brown-Hunter, 806 F.3d at 494. Here, the 10 ALJ’s summary of Plaintiff’s medical history, no matter how detailed, does not meet the standard 11 required to provide clear and convincing reasons for rejecting Plaintiff’s subjective complaints. 12 Additionally, the ALJ did not specifically identify what part of Plaintiff’s testimony is not 13 credible but instead gives general, nonexplicit reasons. The ALJ correctly considered relevant 14 medical evidence— “objective evidence such as the benign physical examination findings”— 15 when evaluating Plaintiff’s subjective complaints;” however, the ALJ does not specify what 16 physical examinations are “benign” or what the ALJ considered in finding such physical 17 examinations “benign.” (AR 33). Here, the ALJ incorrectly discredits Plaintiff’s subjective 18 complaints solely because such complaints were not supported by objective medical evidence. 19 (AR 33); see Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain 20 testimony cannot be rejected on the sole ground that it is not fully corroborated by objective 21 medical evidence, the medical evidence is still a relevant factor in determining the severity of 22 claimant’s pain and its disabling effects.”) (citing 20 C.F.R. § 404.1529(c)(2); see also Bunnell v. 23 Sullivan, 947 F.2d 341, 346-47 (9th Cir. 2001); see also Fair v. Bowen, 885 F.2d 597, 601 (9th 24 Cir. 1989). 25 Defendant attempts to identify which physical examinations were benign by listing 26 multiple references to the record. (Doc. No. 15 at 9). This Court must evaluate the ALJ’s 27 decision with the reasons provided in her order and is not permitted to consider reasoning not 28 offered by the ALJ in her decision. See Lambert, 980 F.3d at 1278 (ruling that the district court 1 could not fill in the ALJ’s reasoning by citing portions of the record where reasonable inferences 2 could be drawn because the credibility determination belongs to the ALJ, and courts are 3 constrained to review the reasons the ALJ asserts); see also Brown-Hunter, 806 F.3d at 494; see 4 also Bray v. Comm’r of SSA, 554 F.3d 1219, 1225 (9th Cir. 2009) (the Court “review[s] the ALJ’s 5 decision based on the reasoning and factual findings offered by the ALJ’s decision based on 6 reasoning and factual findings offered by the ALJ—not post hoc rationalizations that attempt to 7 intuit what the adjudicator may have been thinking.”). The ALJ, not the Defendant, needs to 8 specifically identify which physical examinations in the record are “benign.” The ALJ did not 9 specifically identify which physical examinations are “benign” and therefore did not provide clear 10 and convincing reasons for rejecting Plaintiff’s subjective complaints. 11 Here, the ALJ also rejected Plaintiff’s subjective complaints because “[Plaintiff’s] 12 activities of daily living are inconsistent with impairment related limitations that preclude all 13 work activity.” (AR 33). While the ALJ can reject Plaintiff’s subjective complaints because such 14 complaints are inconsistent with his daily activities, she must still specifically specify what daily 15 activities are inconsistent with Plaintiff’s subjective complaints. Morgan, 169 F.3d at 600; see 16 Holohan, 246 F.3d at 1208; see also Brown-Hunter, 806 F.3d at 494. Although the Defendant 17 attempts to supplement the ALJ’s reasoning by citing Plaintiff’s video game hobby and ability to 18 walk up to five hours a day, (AR 33); (Doc. No. 15 at 10), this Court’s review is limited to only 19 the reasons provided in the ALJ’s decision. See Lambert, 980 F.3d at 1278; see also Brown- 20 Hunter, 806 F.3d at 494; see also Bray, 554 F.3d at 1225. However, the ALJ did not cite which 21 specific daily activities were inconsistent with Plaintiff’s subjective complaints and therefore did 22 not provide clear and convincing reasons for the ALJ to reject Plaintiff’s symptom claims. 23 The Court concludes that the ALJ did not provide clear and convincing reasons, supported 24 by substantial evidence, for rejecting Plaintiff’s symptom claims. On remand, the ALJ must 25 reconsider Plaintiff’s symptom claims. 26 B. Ms. Anabel Martinez’s Lay Witness Evidence 27 Ms. Anabel Martinez, Plaintiff’s sister, stated in a Third-Party Function Report that 28 Plaintiff has difficulty concentrating for long periods of time. (AR 194, 206). Ms. Martinez 1 explained that the Plaintiff needs supervision when showering, does not know how to comb his 2 hair, does not know how to shave, and needs to be told when to take his medicine. (AR 196, 207- 3 08). Ms. Martinez did note that Plaintiff gets along well with authority figures. (AR 200, 212). 4 Ms. Martinez’ Third-Party Function Report generally was consistent with Plaintiff’s First-Party 5 Function Report. (AR 194-214, 229-237). The ALJ did, however, did note that Ms. Martinez 6 also added that Plaintiff did not handle stress well and described his behavior as “childlike at 7 times.” (AR 25). 8 Plaintiff takes issue with the ALJ rejecting Ms. Martinez’s statement without providing 9 germane reasons specific to her statements. (Doc. No. 14 at 12-13). Plaintiff argues the ALJ’s 10 vague assertions are not specific to Ms. Martinez’s statements. (Id.) The ALJ acknowledged Ms. 11 Martinez’s Third-Party Function Report and briefly summarized her statements.3 (AR 25). After 12 explaining the content of Ms. Martinez’s statements, to include stating it is similar to Plaintiff’s 13 First-Party Function Report, the ALJ otherwise fails to opine on the significance, if any, of Ms. 14 Martinez’s statement. Thus, it is unclear what weight, if any, the ALJ assigned to Ms. Martinez’ 15 Third-Party Function Report. 16 When discounting the opinion of a lay witness, the ALJ must give germane reasons that 17 are specific to each witness. Valentine v. Comm’r SSA, 574 F.3d 685, 694 (9th Cir. 2009); see 18 also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) (holding the ALJ, who incorrectly 19 thought the lay witnesses repeated the claimant’s complaints, wrongfully dismissed lay witness 20 testimony for not giving germane reasons specific to each). However, “if the ALJ gives germane 21 reasons for rejecting testimony by one witness, the ALJ need only point to those reasons when 22 rejecting similar testimony by a different witness.” Molina, 674 F.3d at 1114 (internal citations 23 omitted). Without giving germane reasons that are specific to Ms. Martinez’s statement, the ALJ 24 3 The ALJ cited Ms. Martinez’s Third-Party Function Report, dated September 25, 2016, as Exhibit 3E and 25 explains that it is nearly identical to Plaintiff’s First-Party Function Report, dated September 25, 2016, as Exhibit 4E (AR 25). The ALJ acknowledged Plaintiff’s First-Party Function Report in the paragraph 26 preceding her discussion of Ms. Martinez’s Third-Party Function Report. (AR 25). While Ms. Martinez’s Function Report may be similar to Plaintiff’s, the ALJ incorrectly cited the wrong Function Report 27 submitted by Plaintiff. Ms. Martinez submitted two Third-Party Function Reports, Exhibits 3E and 4E, whereas Plaintiff submitted his First-Party Function Report on February 6, 2017. (AR 194-219, 229-237) 28 (citing Exhibit 7E). 1 failed to properly reject Ms. Martinez’s lay witness statement. See Valentine, 574 F.3d at 994; 2 see also Dodrill 12 F.3d at 918-19. 3 Despite a lack of germane reasons specific to Ms. Martinez’s statements, Defendant 4 argues the ALJ properly rejected Ms. Martinez’s statements because this case is like Molina v. 5 Astrue. (Doc. No. 15 at 11). In Molina, the ALJ gave specific, clear, and convincing reasons 6 rejecting the claimant’s testimony. 674 F.3d at 1115. The ALJ stated that third-party witness 7 statements factored into her rationale for the credibility determination. Id. at 1114. However, the 8 ALJ did not give reasons for rejecting the third-party witness statements. Id. at 1114-15. In 9 Molina, the court ruled that the ALJ committed a harmless error by not giving germane reasons 10 for rejecting the third-party witness statements. Id at 1122. The error was harmless because the 11 third-party witness statements did not describe any limitations beyond what was described by the 12 claimant, which the ALJ discussed and properly rejected. Id. Therefore, the court reasoned that 13 the ALJ’s reasons for rejecting the claimant’s statements also applied to the third-party witness 14 statements. Id. Here, Defendant employs the same logic found in Molina, arguing that the ALJ 15 properly rejected Plaintiff’s subjective complaints, and because Ms. Martinez’s Function Report 16 is similar to Plaintiff’s Function Report, the ALJ’s reasons for rejecting Plaintiff’s statements also 17 apply to Ms. Martinez’s statements. (Doc. No. 15 at 11). As a result, Defendant explains the 18 ALJ properly weighed Ms. Martinez’s opinion. 19 The case at hand is distinguishable from Molina. As discussed supra, the ALJ failed to 20 give clear and convincing reasons for rejecting Plaintiff’s subjective complaints. Molina requires 21 the ALJ to properly reject the claimant’s statements in order for those reasons to apply to third- 22 party witness statements. Molina, 674 F.3d at 1122. Because the ALJ did not provide any legally 23 sufficient reasons for rejecting Plaintiff’s subjective complaints; there are not sufficient reasons 24 for the ALJ to reject Ms. Martinez’s opinions. In light of the need to reconsider Plaintiff’s 25 symptom claims, the ALJ must also reconsider the lay witness statements on remand. 26 C. Medical Opinions 27 Plaintiff argues the ALJ erred by rejecting the medical opinions by examining physician, 28 Dr. Rustom Damania and PA-C Guzman, a physician’s assistant. (Doc. No. 14 at 6-11). There 1 are three types of physicians: “(1) those who treat the claimant (treating physicians); (2) those 2 who examine but do not treat the claimant (examining physicians); and (3) those who neither 3 examine nor treat the claimant [but who review the claimant's file] (nonexamining [or reviewing] 4 physicians).” Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 5 Generally, a treating physician’s opinion carries more weight than an examining physician's 6 opinion, and an examining physician's opinion carries more weight than a reviewing physician’s 7 opinion. Id. If a treating or examining physician’s opinion is uncontradicted, the ALJ may reject 8 it only by offering “clear and convincing reasons that are supported by substantial evidence.” 9 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating or 10 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it 11 by providing specific and legitimate reasons that are supported by substantial evidence.” Id. 12 (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). “[T]he ALJ can meet this burden 13 by setting out a detailed and thorough summary of the facts and conflicting clinical evidence 14 stating [her] interpretation thereof and making findings.” Tommasetti v. Astrue, 533 F.3d 1035, 15 1041 (9th Cir. 2008) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 16 “However, the ALJ need not accept the opinion of any physician, including a treating physician, 17 if that opinion is brief, conclusory and inadequately supported by clinical findings.” Bray v. 18 Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (quotation and citation 19 omitted). 20 “The ALJ is responsible for determining credibility, resolving conflicts in medical 21 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 22 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The ALJ’s decision must 23 be upheld where the medical “evidence is susceptible to more than one rational interpretation. 24 Andrews, F.3d at 1039-40 (internal citations omitted). Only licensed physicians, certified 25 psychologists, licensed optometrists, licensed podiatrist, and qualified pathologist are considered 26 acceptable medical sources. Molina, 674 F.3d at 1111 n.2. (internal citations omitted). 27 Physician’s assistants are not entitled to the same deference as acceptable medical sources 28 1 because they are defined as “other sources.” Id. at 1111. (internal citations omitted).4 2 1. Dr. Rustom Damania M.D. 3 The ALJ gave little weight to Dr. Damania’s opinion that Plaintiff’s “bronchial asthma 4 and hypertension impose exertional limitations to medium work…” (AR 32). The ALJ explained 5 her decision to give little weight to Dr. Damania’s opinion because “the evidence confirms the 6 [Plaintiff’s] asthma is controlled and there are no documented complications of hypertension.” 7 The ALJ further pointed out that Plaintiff’s treatment records “consistently document the 8 [Plaintiff’s] lungs as ‘clear to auscultation’ and his heart sounds exhibited regular rate and rhythm 9 despite elevated blood pressure blood pressure readings on occasion” which was consistent with 10 the time Plaintiff failed to take his blood pressure medications. Id. 11 Dr. Damania provided a consultative internal medicine examination report on January 3, 12 2017. (AR 306-312). Dr. Damania noted that the Plaintiff’s chronic bronchial asthma is “fairly 13 well-controlled.” (AR 306). Dr. Damania conducted an examination of the Plaintiff which 14 included checking his blood pressure. (AR 309). Plaintiff’s lungs were checked and his breath 15 was symmetric, there was no rhonchi or rales, and the expiratory phase was within the normal 16 limits. (AR 309). Dr. Damania also found Plaintiff’s range of motion within normal limits for 17 his upper and lower extremities. (AR 310). Finally, Dr. Damania opined on Plaintiff’s functional 18 capacity: 19 The claimant is a 28-year-old male. The claimant should be able to lift and carry 50 pounds occasionally and 25 pounds frequently. The 20 claimant can stand and walk eight hours out of an eight hour work day with normal breaks. The claimant can sit eight hours out of an 21 eight hour work day. No assistive device is necessary for ambulation. No postural limitations. No manipulative limitations. 22 No relevant visual or communicative impairments. 23 Id. 24 Plaintiff argues that the ALJ did not give specific reasons for assigning little weight to Dr. 25 Damania’s opinion. (Doc. No. 14 at 11). Plaintiff takes issue with the ALJ’s reasoning, 26 explaining that “the ALJ failed to support the assumption that asthma, obesity, and hypertension 27 4 Physicians’ assistants are acceptable medical sources “only with respect to claims filed (see [20 C.F.R.] § 28 416.325) on or after March 27, 2017.” 20 C.F.R. §416.902(a)(8). 1 would not warrant a restriction on heavy exertion to prevent triggering his asthma or episodes of 2 hypertension.” Id. 3 “Where all or part of an examining physician’s opinion is contradicted by other 4 independently derived evidence, the ALJ may reject all or part of such opinion by setting forth 5 specific and legitimate reasons that are supported by substantial evidence in the record.” Martin 6 v. Berryhill, 2017 WL 1064653 *1, 18 (E.D. Cal. Mar. 17, 2017) (citing Rollins v. Massanari, 7 261 F.3d 853, 856 (9th Cir. 2001). Specific, legitimate reasons supported by substantial evidence 8 in the record is needed for an ALJ to reject the opinion of an examining doctor. Andrews, 53 F.3d 9 at 104. 10 Here, the ALJ provided specific, legitimate reasons explaining why she assigned little 11 weight to Dr. Damania’s opinion explaining that “evidence confirms the [Plaintiff’s] asthma is 12 controlled;” “there is no documented complications of hypertension;” “[t]he opinion is overly 13 restrictive given the treatment records which consistently document the [Plaintiff’s] lungs as 14 ‘clear to auscultation’ and his heart sounds exhibited regular rate and rhythm despite elevated 15 blood pressure blood pressure readings on occasion;” and “evidence also shows the [Plaintiff] 16 does not consistently take his blood pressure medications and readings were elevated on those 17 days, but not so elevated the physician suggested the [Plaintiff] seek emergent treatment.” (AR 18 32). The aforementioned reasons provided by the ALJ are specific and legitimate reasons, 19 supported by substantial evidence for the ALJ to accord Dr. Damania’s opinion limited weight. 20 See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (holding that the ALJ provided 21 specific and legitimate reasons to reject the opinion of plaintiff’s treating physician by citing 22 findings from the treating physician’s examination that stated plaintiff was not disabled; the 23 treating physician only prescribed a conservative course of treatment; and the restrictions 24 imposed by the treating physician were inconsistent with plaintiff’s daily activities); Andrews, 53 25 F.3d at 1041-42; Tommasetti, 533 F.3d at 1041 (holding that the ALJ provided a specific and 26 legitimate reason to reject the opinion of claimant’s treating physician because such an opinion 27 was contrary to claimant’s medical records); Martin v. Berryhill, 2017 WL 1064653 *1, 18 (E.D. 28 Cal. Mar. 17, 2017). 1 2. Mr. C. Guzman, P.A. 2 P.A. Guzman prepared three different medical opinions: a mental RFC questionnaire, a 3 physical medical source statement, and a letter dated March 14, 2018 (“letter”). Plaintiff argued 4 the ALJ erred when she rejected P.A. Guzman’s opinion without providing a proper evaluation. 5 (Doc No. 14 at 6). Because Plaintiff did not distinguish which medical opinion provided by P.A. 6 Guzman that the ALJ improperly rejected, this Court will consider the weight the ALJ gave to 7 each medical source statement and the letter. 8 The ALJ must give germane reasons to discount the testimony of “other sources.” 9 Molina, 674 F.3d at 1111 (citing Turner v. Comm’r of Soc. Sec., F.3d 1217, 1224 (9th Cir. 2010) 10 (internal citations and quotations omitted). Check-off reports that do not contain any explanation 11 of the basis for their conclusions may be rejected by the ALJ. Id. at 13 (citing Crane v. Shalala, 12 76 F.3d 251, 253 (9th Cir. 1996); see also Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 13 2001). “The ALJ need not accept the opinion of any physician, including a treating physician, if 14 that opinion is brief, conclusory, and inadequately supported by clinical findings.” Ford v. Saul, 15 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 16 2002). “An ALJ is not required to take medical opinions at face value, but may take into account 17 the quality of the explanation when determining how much weight to give a medical opinion.” 18 Ford, 950 F.3d at 1155 (internal citations omitted). “A conflict between a treating physician’s 19 opinion and a claimant’s activity level is a specific and legitimate reason for rejecting the 20 opinion.” Id. (internal citation omitted). 21 a. Mental RFC Questionnaire 22 On October 19, 2018, P.A. Guzman prepared a mental RFC questionnaire. (AR 331-333). 23 In the mental RFC questionnaire, P.A. Guzman assessed Plaintiff’s mental abilities to function 24 independently across four different mental ability categories: (i) mental abilities understanding 25 and memory, (ii) mental abilities sustained concentration and memory, (iii) social interaction, and 26 (iv) adaption. (AR 331-332). Each mental category had an applicable set of “sub-categories” that 27 required P.A. Guzman to assess a more specific aspect of the Plaintiff’s mental abilities. Id. P.A. 28 Guzman checked the boxes to complete his assessment without providing any an explanation for 1 any of his responses for any of the four categories. Id. The mental RFC questionnaire also 2 included estimates that, due to his mental impairments, Plaintiff would be absent from work five 3 days or more per month and would be unable to complete an eight-hour workday five or more 4 days per month. Id. at 333. Finally, the assessment included the Plaintiff having an IQ of 54 on 5 the full scale and a description of having a borderline level of intelligence. Id. The Plaintiff was 6 diagnosed with anxiety and cognitive deficit by P.A. Guzman. Id. at 331. 7 Plaintiff first argues the ALJ incorrectly rejected P.A. Guzman’s mental RFC 8 questionnaire for finding that the limitations assessed by P.A. Guzman were inconsistent with 9 Plaintiff’s daily activities. (Doc. No. 14 at 7-8). The ALJ explained that the degree of limitations 10 assessed by P.A. Guzman concerning Plaintiff’s inability to concentrate were inconsistent with 11 Plaintiff’s daily activities, including Plaintiff’s video game hobby. (AR 29). Additionally, the 12 ALJ explained that P.A. Guzman did not provide any evidence supporting his assessment that 13 Plaintiff would be off task, miss work, or experience symptom interference with concentrating. 14 (AR 28). The ALJ gave specific reasons to support giving no weight to P.A. Guzman’s mental 15 RFC questionnaire by explaining that Plaintiff’s daily activities were inconsistent with P.A. 16 Guzman’s assessment. (AR 28-29); see Ford, 950 F.3d at 1154-55. The ALJ explained that 17 Plaintiff’s ability to sustain concentration over extended periods of time while playing video 18 games was inconsistent with P.A. Guzman’s assessment that Plaintiff would have difficulty 19 concentrating. See id. 20 Second, Plaintiff argues that the ALJ erred by giving vague reasons to reject P.A. 21 Guzman’s mental RFC questionnaire. Besides citing the inconsistencies with Plaintiff’s daily 22 activities discussed in the preceding paragraph, the ALJ also stated that P.A. Guzman’s 23 assessment offered no evidence to support the limitations assessed to the degree Plaintiff would 24 be off task, miss work, or experience symptom interference with his ability to concentrate. (AR 25 28). The ALJ correctly considered the fact that P.A. Guzman does not provide any explanation or 26 evidence to support his assessed limitations in the mental RFC questionnaire and uses this as 27 another germane reason to assign no weight to P.A. Guzman’s mental RFC questionnaire. (See 28 AR 29); see also id. While the ALJ did give germane reasons for rejecting P.A. Guzman’s 1 mental RFC questionnaire, the ALJ acted properly for rejecting P.A. Guzman’s check-off reports 2 which contained no explanation for the bases of his conclusions. See Molina, 674 F.3d at 1111; 3 (see also AR 331-332) (documenting where P.A. Guzman does not offer any explanation for his 4 responses on category I, II, and III). Ultimately, the ALJ properly used multiple germane reasons 5 to discount P.A. Guzman’s mental medical source statement. 6 The third argument Plaintiff presents is P.A. Guzman’s mental RFC questionnaire 7 included the same test results from Dr. Murphy’s objective test. The ALJ explained that one 8 reason she assigned no weight to P.A. Guzman’s mental RFC questionnaire was it included 9 unsubstantiated test scores which were not included with the mental RFC questionnaire or the 10 medical evidence of record. (AR 29). While P.A. Guzman’s handwriting is difficult to read, 11 when asked, “what test(s) were used and when to determine [your patient’s I.Q.]?” (AR 333), he 12 responds: “Wechsler [Adult] intelligence test scale.” Id. P.A. Guzman does not make any 13 reference to the test conducted by Dr. Murphy or even the date which Dr. Murphy conducted his 14 test. The only similarity is P.A. Guzman reported the same performance and verbal score that Dr. 15 Murphy reported. The ALJ is responsible for resolving ambiguities in medical testimony, and 16 here she was responsible for solving any ambiguity that was caused by P.A. Guzman’s 17 unsubstantiated test results. See Andrews, 53 F.3d at 1039. Moreover, when the evidence is 18 susceptible to more than one reasonable interpretation, the Court must defer to the findings of the 19 ALJ. Burch, 400 F.3d at 680–81. Here, the ALJ reasonably discounted P.A. Guzman’s opinion 20 because the test scores were not in the provider’s record and were otherwise unsubstantiated. 21 (See AR 29). As a result, the ALJ gave specific reasons supported by substantial evidence to 22 provide no weight to P.A. Guzman’s mental medical source statement. 23 Plaintiff’s fourth argument is that the ALJ improperly “rejected” P.A. Guzman’s opinion 24 by relying on an untrue characterization of Plaintiff and his sister’s statements about him getting 25 along well with others and having few difficulties with his personal care. (Doc. No. 14 at 8). 26 Plaintiff details in the record evidence demonstrating that the Plaintiff has difficulty with tending 27 to his personal needs. Id. Plaintiff is partially correct in his argument that the ALJ 28 mischaracterized Plaintiff and Ms. Martinez’s statements. The ALJ only mischaracterized the 1 portion of the statements related to Plaintiff’s inability to tend to his personnel needs. (Doc. No. 2 14 at 8); (AR 194-214, 229-237). The ALJ accurately characterized the portion of the statements 3 where both Plaintiff and Ms. Martinez stated that Plaintiff gets along well with others. Id. 4 However, even if the ALJ erred in considering this piece of evidence, the overall findings were 5 supported by substantial evidence. See Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1162-63 (9th 6 Cir. 2008). 7 Plaintiff’s last argument is that the ALJ improperly relied on Plaintiff’s friendly and 8 cooperative nature with medical providers as a reason to reject P.A. Guzman’s mental RFC 9 questionnaire. (Doc. No. 14 at 8). Plaintiff is correct that P.A. Guzman did not give an opinion 10 as to whether or not Plaintiff would be uncooperative, unfriendly, or create conflict; however, 11 even if the ALJ erred by improperly relying on this aspect of P.A. Guzman’s mental RFC 12 questionnaire, any such error is harmless because the overall finding was still supported by 13 substantial evidence. See Carmickle, 533 F.3d at 1162-63. 14 b. Physical Medical Source Statement 15 On October 19, 2018, P.A. Guzman also prepared a physical medical source statement. 16 (AR 334-37). In the physical medical source statement, P.A. Guzman diagnosed Plaintiff with 17 hypertension, hyperlipidemia, allergies, and anxiety but listed “none” under Plaintiff’s symptoms. 18 (AR 334). P.A. Guzman opined that Plaintiff can also stand/walk for about four hours during an 19 eight-hour workday with normal breaks and described Plaintiff’s ability to twist, stoop (bend), 20 crouch/squat, climb stairs, and climb ladders. Id. at 335-36. While P.A. Guzman stated that 21 Plaintiff does not have significant limitations with reaching, handling, or fingering, he did 22 indicate specific limiting percentages of time during an eight-hour workday which Plaintiff could 23 use his hands, fingers, and arms. (AR 336). The ALJ assigned little weight to the physical 24 medical source statement because it was inconsistent with the overall record; it was not supported 25 by objective evidence; and it was conclusory without any explanation. (Id. at 28) 26 Plaintiff argues the ALJ erred because she did not state how P.A. Guzman’s statement is 27 inconsistent with Plaintiff’s daily activities, and the ALJ did not explain how “other opinions and 28 “the weight of the evidence” did not support P.A. Guzman’s assessment (Doc No. 14 at 7-9). 1 Plaintiff incorrectly claims the ALJ erred by not giving germane reasons for rejecting P.A. 2 Guzman’s physical medical source statements. (Doc. No. 14 at 6-9). The ALJ explained P.A. 3 physical medical source statement conflicted with other evidence such as Plaintiff’s daily 4 activities, which included Plaintiff’s walking and video game hobby. (AR 28-29); See Ford, 950 5 F.3d at 1155. The ALJ elaborated that Plaintiff’s ability to walk up to six hours conflicted with 6 P.A. Guzman’s assessment that Plaintiff had difficulties walking and had a back impairment. 7 (AR 28); See id. Additionally, the ALJ explained that Plaintiff’s ability to play video games over 8 long period of times conflicted with P.A. Guzman’s assessment that Plaintiff had limitations 9 manipulating with his hands and fingers. (AR 28); See id. The ALJ also pointed out that P.A. 10 Guzman’s physical medical source statement was not supported by any medical findings which 11 would account for why Plaintiff was diagnosed with extreme physical and exertional limitations. 12 See Ford, 950.F3d at 1154. Finally, the ALJ considered the fact that P.A. Guzman failed to 13 explain any of the physical limitations he assessed for Plaintiff. (AR 28); see Id. at 1155. It is 14 within the ALJ’s authority to consider the quality of an explanation when determining the amount 15 of weight to assign to a medical opinion. Ford, 950 F.3d at 1555. The ALJ did not error by 16 assigning little weight to P.A. Guzman’s physical medical source statement. 17 c. Letter Dated March 14, 2018 18 The ALJ referenced P.A. Guzman’s letter dated March 14, 2018, acknowledging it 19 provided some background and observations about Plaintiff, but otherwise “little evidentiary 20 value . . . of any medically determinable impairment.” (AR 29-30). When a physician’s report 21 does not assign any specific limitations or opinions in relation to an ability to work, “the ALJ 22 [does] not need to provide ‘clear and convincing reasons’ for rejecting the report because the ALJ 23 did not reject any of the [report’s] conclusions.” Turner, 613 F.3d at 1223; see also Kay v. 24 Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) (“the mere diagnosis of an impairment…is not 25 sufficient to sustain a finding of disability.”). 26 The ALJ provided germane reasons for assigning little evidentiary value to P.A. 27 Guzman’s letter. The ALJ explained that she decided to assign little evidentiary value to the 28 letter because the letter did not detail any limitations on Plaintiff’s ability to work. (AR 29-30); 1 See Turner, 613 F.3d at 1223. Furthermore, the ALJ did not need to specify specific reasons to 2 reject any of the conclusions in the letter because the ALJ did not reject the conclusions in the 3 letter that Plaintiff exhibited a low-key demeanor, was soft spoken, is hesitant with conversation 4 because of his fear of making a mistakes or could benefit from a paid work training program. 5 (AR 275); see Turner, 613 F.3d at 1223. Finally, while the letter states Plaintiff is treated for 6 hypertension, hyperlipidemia, asthma, and allergic rhinitis, such diagnoses are not a sufficient 7 reason to find Plaintiff with a disability correlating with each diagnosis. See Heckler, 754 F.2d at 8 1549; see also Kay, 754 F.2d at 1549. The ALJ properly considered the letter. See Id. Despite 9 offering no evidentiary value, the ALJ explained she was able to use the letter to better 10 understand Plaintiff’s background which included Plaintiff being able to at least perform basic 11 work tasks and an inference from the letter that “improvement in [Plaintiff’s] ability to sustain 12 work activity to improve knowledge and skills is attainable and not precluded by [Plaintiff’s] 13 particular mental profile.” (AR 30). 14 Ultimately, the ALJ gave germane reasons for assigning no weight to P.A. Guzman’s 15 mental medical source statement, little weight to P.A. Guzman’s physical medical source 16 statement, and nominal weight to P.A. Guzman’s letter. 17 D. Remedy 18 Plaintiff requests the Court remand for further proceedings. (Doc. No. 14 at 14). The 19 decision to remand for further proceedings is within the discretion of the district court. 20 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where there are outstanding issues that 21 must be resolved before a determination can be made, and it is not clear from the record that the 22 ALJ would be required to find a claimant disabled if all the evidence were properly evaluated, 23 remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman 24 v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 25 This Court finds further administrative proceedings are appropriate. Here, the ALJ 26 improperly considered Plaintiff’s symptom claims, which calls into question whether the assessed 27 RFC, and resulting hypothetical propounded to the vocational expert are supported by substantial 28 evidence. In light of a need to conduct a new sequential analysis, as well as a need to evaluate 1 | Plaintiffs subjective complaints, on remand the ALJ should also consider the third-party 2 || statements provided by Ms. Anabel Martinez, and all relevant medical evidence. If necessary, the 3 | ALJ should order additional consultative examinations and, if necessary and/or appropriate, take 4 | additional testimony from medical experts. The ALJ should conduct a new sequential analysis, 5 || reassess Plaintiff's RFC and, if necessary, take additional testimony from a vocational expert 6 | which includes all the limitations created by the ALJ. 7 Accordingly, it is ORDERED: 8 1. Pursuant to sentence four of 42 U.S.C. § 405(g), the Court REVERSES the 9 Commissioner’s decision and REMANDS for further proceedings consistent with this 10 order. 11 2. An application for attorney fees may be filed by separate motion. 12 3. The Clerk shall terminate any motions and deadlines and close this case. 13 Dated: _ March 14, 2022 law Nh. fareh Base □□□ 15 HELENA M. BARCH-KUCHTA 6 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 21