(SS) Palominos Guillen v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MA DEL CARMEN PALOMINOS Case No. 1:23-cv-00014-HBK GUILLEN, 12 ORDER DENYING PLAINTIFF’S MOTION Plaintiff, FOR SUMMARY JUDGMENT, GRANTING 13 DEFENDANT’S MOTION FOR SUMMARY v. JUDGMENT, AND AFFIRMING THE 14 DECISION OF THE COMMISSIONER OF MARTIN O’MALLEY, SOCIAL SECURITY2 15 COMMISSIONER OF SOCIAL SECURITY,1 (Doc. Nos. 13, 16) 16 Defendant. 17 18 19 Ma Del Carmen Palominos Guillen (“Plaintiff”), seeks judicial review of a final decision 20 of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her 21 application for supplemental security income and disability insurance benefits under the Social 22 Security Act. (Doc. No. 1). The matter is currently before the undersigned on the parties’ briefs, 23 which were submitted without oral argument. (Doc. Nos. 13, 16-17). For the reasons set forth 24 more fully below, the Court denies Plaintiff’s motion for summary judgment, grants Defendant’s 25 26 1 This action was originally filed against Kilolo Kijakazi in his capacity as the Commissioner of Social Security. (See Doc. No. 1). The Court has substituted Martin O’Malley, who has since been appointed the 27 Acting Commissioner of Social Security, as the defendant in this suit. 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. 9). 1 cross-motion for summary judgment, and affirms the Commissioner’s decision. 2 I. JURISDICTION 3 Plaintiff protectively filed for supplemental security income on November 2, 2018 and for 4 disability insurance benefits on August 2, 2018, alleging a disability onset date of October 31, 5 2017. (AR 292-98, 301-10). Benefits were denied initially (AR 59-86, 127-32) and upon 6 reconsideration (AR 87-122, 135-40). Plaintiff appeared for a hearing before an administrative 7 law judge (“ALJ”) on September 10, 2021. (AR 42-58). Plaintiff testified at the hearing with a 8 translator, and was represented by counsel. (Id.). The ALJ denied benefits (AR 20-41) and the 9 Appeals Council denied review (AR 6-13). The matter is before the Court under 42 U.S.C. § 10 405(g) and 42 U.S.C. § 1383(c)(3). 11 II. BACKGROUND 12 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 13 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 14 summarized here. 15 Plaintiff was 66 years old at the time of the hearing. (AR 46). She completed first grade 16 in Mexico. (AR 47-48). She lives with her two adult disabled children. (AR 46). She has work 17 history as a housekeeper and a fruit cutter. (AR 48-49, 54). Plaintiff testified that she left her last 18 job because she hurt her knee. (AR 50). She reported that she can only stand for one hour before 19 her feet start to feel numb and she has to sit down; she can lift no more than 10 pounds; and she 20 elevates her leg for 20 minutes 3 times per day. (AR 51-52). 21 III. STANDARD OF REVIEW 22 A district court’s review of a final decision of the Commissioner of Social Security is 23 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 24 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 25 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 26 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 27 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 28 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 1 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 2 consider the entire record as a whole rather than searching for supporting evidence in isolation. 3 Id. 4 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 5 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 6 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 7 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 8 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 9 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 10 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 11 U.S. 396, 409-10 (2009). 12 IV. SEQUENTIAL EVALUATION PROCESS 13 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 14 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 15 activity by reason of any medically determinable physical or mental impairment which can be 16 expected to result in death or which has lasted or can be expected to last for a continuous period 17 of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the 18 claimant’s impairment must be “of such severity that he is not only unable to do his previous 19 work[,] but cannot, considering his age, education, and work experience, engage in any other kind 20 of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 21 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. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 24 At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. §§ 25 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” 26 the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 27 416.920(b). 28 //// 1 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 2 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 3 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant suffers from “any impairment or 4 combination of impairments which significantly limits [his or her] physical or mental ability to do 5 basic work activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 416.920(c). 6 If the claimant’s impairment does not satisfy this severity threshold, however, the Commissioner 7 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). 8 At step three, the Commissioner compares the claimant’s impairment to severe 9 impairments recognized by the Commissioner to be so severe as to preclude a person from 10 engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 11 the impairment is as severe or more severe than one of the enumerated impairments, the 12 Commissioner must find the claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 13 416.920(d). 14 If the severity of the claimant’s impairment does not meet or exceed the severity of the 15 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 16 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 17 ability to perform physical and mental work activities on a sustained basis despite his or her 18 limitations, 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth 19 steps of the analysis. 20 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 21 claimant is capable of performing work that he or she has performed in the past (past relevant 22 work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of 23 performing past relevant work, the Commissioner must find that the claimant is not disabled. 20 24 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is incapable of performing such work, the 25 analysis proceeds to step five. 26 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 27 claimant is capable of performing other work in the national economy. 20 C.F.R. §§ 28 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, the Commissioner must also 1 consider vocational factors such as the claimant’s age, education, and past work experience. 20 2 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other 3 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis 5 concludes with a finding that the claimant is disabled and is therefore entitled to benefits. 20 6 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 7 The claimant bears the burden of proof at steps one through four. Tackett v. Apfel, 180 8 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 9 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 10 work “exists in significant numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 11 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 12 V. ALJ’S FINDINGS 13 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 14 since October 31, 2017, the alleged onset date, except for the first quarter of 2020. (AR 29). At 15 step two, the ALJ found that Plaintiff has the following severe impairments: left knee 16 derangement and obesity. (AR 29). At step three, the ALJ found that Plaintiff does not have an 17 impairment or combination of impairments that meets or medically equals the severity of a listed 18 impairment. (AR 30). The ALJ then found that Plaintiff has the RFC to 19 perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can occasionally climb ramps or stairs and never climb 20 ladders, ropes, or scaffolds. She can occasionally kneel, crouch, or crawl. She must avoid frequent exposure to extreme cold and 21 excessive vibration. 22 (AR 30). At step four, the ALJ found that Plaintiff is capable of performing past relevant work as 23 a housekeeper. (AR 34). On that basis, the ALJ concluded that Plaintiff has not been under a 24 disability, as defined in the Social Security Act, from October 31, 2017, through the date of the 25 decision. (AR 34). 26 //// 27 //// 28 //// 1 VI. ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying her 3 supplemental security income benefits under Title XVI of the Social Security Act and disability 4 insurance benefits under Title II of the Social Security Act. (Doc. No. 1). Plaintiff raises the 5 following issue for this Court’s review: whether the RFC was supported by substantial evidence 6 and free from legal error in light of the ALJ’s consideration of the medical opinion evidence. 7 (Doc. No. 13 at 15-21). 8 VII. DISCUSSION 9 A claimant’s RFC is “the most [the claimant] can still do despite [his or her] limitations.” 10 20 C.F.R. § 404.1545(a); 20 C.F .R. § 416.945(a). The RFC assessment is an administrative 11 finding based on all relevant evidence in the record, not just medical evidence. Bayliss v. 12 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In determining the RFC, the ALJ must consider 13 all limitations, severe and non-severe, that are credible and supported by substantial evidence in 14 the record. (Id.) (RFC determination will be affirmed if supported by substantial evidence). 15 However, an ALJ’s RFC findings need only be consistent with relevant assessed limitations and 16 not identical to them. Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010). 17 Ultimately, a claimant’s RFC is a matter for the ALJ to determine. See Vertigan v. Halter, 260 18 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it is the responsibility of the ALJ ... to determine 19 residual functional capacity.”). 20 Plaintiff argues the ALJ erred in assessing the RFC because he improperly considered the 21 medical opinions of Dale H. Van Kirk, M.D., Jerry R. Livesay, Ph.D., and Ekram Michiel, M.D. 22 (Doc. No. 13 at 15-21). For claims filed on or after March 27, 2017, new regulations apply that 23 change the framework for how an ALJ must evaluate medical opinion evidence. Revisions to 24 Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 25 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. The new regulations provide that the ALJ 26 will no longer “give any specific evidentiary weight…to any medical opinion(s)…” Revisions to 27 Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. §§ 404.1520c(a), 28 416.920c(a). Instead, an ALJ must consider and evaluate the persuasiveness of all medical 1 opinions or prior administrative medical findings from medical sources. 20 C.F.R. §§ 2 404.1520c(a) and (b), 416.920c(a) and (b). The factors for evaluating the persuasiveness of 3 medical opinions and prior administrative medical findings include supportability, consistency, 4 relationship with the claimant (including length of the treatment, frequency of examinations, 5 purpose of the treatment, extent of the treatment, and the existence of an examination), 6 specialization, and “other factors that tend to support or contradict a medical opinion or prior 7 administrative medical finding” (including, but not limited to, “evidence showing a medical 8 source has familiarity with the other evidence in the claim or an understanding of our disability 9 program’s policies and evidentiary requirements”). 20 C.F.R. §§ 404.1520c(c)(1)-(5), 10 416.920c(c)(1)-(5). 11 Supportability and consistency are the most important factors, and therefore the ALJ is 12 required to explain how both factors were considered. 20 C.F.R. §§ 404.1520c(b)(2), 13 416.920c(b)(2). Supportability and consistency are explained in the regulations: 14 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 15 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 16 administrative medical finding(s) will be. 17 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 18 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 19 finding(s) will be. 20 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). The ALJ may, but is not required to, 21 explain how the other factors were considered. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). 22 However, when two or more medical opinions or prior administrative findings “about the same 23 issue are both equally well-supported ... and consistent with the record ... but are not exactly the 24 same,” the ALJ is required to explain how “the other most persuasive factors in paragraphs (c)(3) 25 through (c)(5)” were considered. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). 26 The Ninth Circuit has additionally held that the new regulatory framework displaces the 27 longstanding case law requiring an ALJ to provide “specific and legitimate” or “clear and 28 convincing” reasons for rejecting a treating or examining doctor’s opinion. Woods v. Kijakazi, 32 1 F.4th 785, 787 (9th Cir. 2022). Nonetheless, in rejecting an examining or treating doctor’s 2 opinion as unsupported or inconsistent, an ALJ must still provide an explanation supported by 3 substantial evidence. Id. at 792. This means that the ALJ “must ‘articulate ... how persuasive’ 4 [he or she] finds ‘all of the medical opinions’ from each doctor or other source ... and ‘explain 5 how [he or she] considered the supportability and consistency factors’ in reaching these findings.” 6 Id. (citing 20 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 7 1. Dale H. Van Kirk, M.D. 8 In March 2019, Dr. Van Kirk completed a consultative orthopedic examination of Plaintiff 9 and opined that she was limited to light exertion, no exposure to an extremely cold and/or damp 10 environment, and occasional postural activities. (AR 673-74). In March 2021, Dr. Van Kirk 11 completed an additional consultative examination of Plaintiff, and opined again that she is limited 12 to light exertion; can never climb ladders or scaffolds, crouch, or crawl; can never be exposed to 13 extreme cold or extreme heat; can occasionally be exposed to humidity and wetness; and can 14 frequently be exposed to pulmonary irritants and vibrations. (AR 693-98). The ALJ found Dr. 15 Van Kirk’s limitation to light exertion was persuasive because it is supported by his own findings 16 of normal strength and range of motion despite “some abnormalities on examination,” and other 17 evidence in the record observing normal gate, some response to conservative treatment, and 18 normal strength. (AR 33). However, the ALJ found Dr. Van Kirk’s limitations on exposure to 19 damp environments and pulmonary irritants, and his opined limitation to never crouching and 20 crawling, were unpersuasive for several reasons. (Id.). 21 First, the ALJ specifically noted that the Dr. Van Kirk’s did not provide sufficient support 22 for these specific limitations; and second, the ALJ noted the “rest of the record” did not support a 23 limitation in exposure to damp environments, and the opined limitation on crouching and 24 crawling is “inconsistent with evidence of full range of motion with extant but not extreme pain.” 25 (AR 33). Plaintiff generally argues that the ALJ’s analysis was insufficient because he “relied 26 upon a cherry-picked analysis of the consistency and supportability of the opinion to support his 27 discrediting of these opinions at issue.” (Doc. No. 13 at 16-17). However, the Court notes that 28 Plaintiff does not identify or challenge the actual specific reasons given by the ALJ to support 1 finding the limitations assessed by Dr. Van Kirk were unpersuasive under the new regulations. 2 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (court may 3 decline to consider issues not raised with specificity in plaintiff’s opening brief); see also Kim v. 4 Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the Court may not consider on appeal issues not 5 “specifically and distinctly argued” in the party’s opening brief). 6 For instance, as to supportability, under the new regulations “the more relevant the 7 objective medical evidence and supporting explanations presented by a medical source are to 8 support” the medical opinion, the more persuasive the medical opinion will be. 20 C.F.R. § 9 404.1520c(c)(1); 416.920c(c)(1) (emphasis added). Here, Plaintiff fails to cite any evidence in 10 Dr. Van Kirk’s own opinion or examination notes that would support a limitation on exposure to 11 damp environments or pulmonary irritants, or a limitation to never crouching and crawling. The 12 Court’s review of the record indicates Plaintiff reported to Dr. Van Kirk that cold weather 13 “definitely enhances” the pain in her knee. (AR 670). However, as noted by Defendant, 14 Plaintiff’s subjective report is not “objective medical evidence and supporting explanation” 15 presented by Dr. Van Kirk in support of a limitation, as required under the regulations (Doc. No. 16 16 at 9); and the ALJ relied on clear, convincing, and unchallenged reasons to discount Plaintiff’s 17 subjective claims (AR 31-32). Based on the foregoing, and regardless of any evidence in Dr. Van 18 Kirk’s examination notes that may be considered more favorable to Plaintiff, substantial evidence 19 supports the ALJ’s unchallenged finding that Dr. Van Kirk did not provide support for the degree 20 of limitations on postural activities or non-exertional limitations set forth in his opinions. (AR 21 33); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where the evidence is susceptible to 22 more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.”). 23 To the extent Plaintiff argues the ALJ erred in considering the consistency factor under 24 the new regulations because the ALJ relied on “cherry picked” evidence, her argument is 25 similarly unavailing. In support of this argument, Plaintiff cites treatment records from the 26 longitudinal record noting left knee pain with flexion, tenderness to palpation, 2+ joint effusion, 27 and limited range of motion; diagnosis of a bucket handle tear of the medial meniscus left knee 28 with referral to orthopedic surgeon; diagnosis of internal derangement with degenerative arthritis; 1 and a notation by the orthopedic surgeon that Plaintiff may require arthroscopic surgery in the 2 future but she should start a course of anti-inflammatory medications prior to considering surgical 3 intervention. (Doc. No. 13 at 16-17 (citing AR 544-46, 648-50, 666-67)). Even under the new 4 regulations, the ALJ may not “cherry-pick” evidence in discounting a medical opinion. See 5 Timothy P. v. Comm’r Soc. Sec. Admin., 2022 WL 2116099, at *9 (D. Or. June 13, 2022) 6 (“Although Woods made it clear that the hierarchy among physicians’ opinions no longer applies 7 in this Circuit, the court did not address whether the new regulations upend the entire body of 8 caselaw relating to medical evidence… It remains true that the ALJs may not cherry-pick 9 evidence in discounting a medical opinion.”). However, a review of the ALJ’s decision indicates 10 that that she did review the medical evidence as part of the summary of medical evidence, 11 including imaging of Plaintiff’s left knee that “revealed tears, grade 4B cartilage loss, bursitis, 12 and large knee joint effusion”; and observations of painful knee movement, limited squatting, and 13 crepitation. (AR 31-32 (citing AR 475, 538, 650, 663, 667, 672, 701)). Moreover, the ALJ 14 specifically cited evidence of full range of motion without extreme pain in the longitudinal record 15 as inconsistent with Dr. Van Kirk’s limitation to no crouching or crawling, as well as clinical 16 findings from the record that arguably do not support the degree of postural limitation assessed by 17 Dr. Van Kirk, including normal gait, full range of motion and strength 5/5, and no limitation in 18 flexion, extension, abduction, adduction, or rotation. (AR 32-33 (citing AR 554, 672-73, 700-02, 19 743, 753, 766)). Finally, the Court is unable to discern, nor does Plaintiff cite, any medical 20 evidence in the overall record to support limitations on dampness or pulmonary irritants. Thus, 21 when viewing the medical record as a whole, it was reasonable for the ALJ to conclude that the 22 afore-mentioned postural and non-exertional limitations assessed in Dr. Van Kirk’s opinion were 23 not consistent with the longitudinal treatment record. See Burch v, 400 F.3d 676, 679. 24 After viewing the ALJ’s reasoning in light of the record as a whole, the Court concludes 25 that the ALJ’s finding that a portion of Dr. Van Kirk’s opinion was unpersuasive was supported 26 by substantial evidence after proper consideration of the supportability and consistency factors. 27 //// 28 //// 1 2. Jerry R. Livesay, Ph.D. 2 In April 2019, Dr. Livesay completed a mental evaluation of Plaintiff and opined that her 3 ability to perform simple and repetitive tasks and accept instructions from supervisors was 4 unimpaired; she was mildly impaired in her ability to perform detailed and complex tasks, interact 5 with coworkers and the public, and perform work activities on a consistent basis without special 6 or additional instruction; and she was moderately impaired in her ability to maintain regular 7 attendance and complete a normal workday/workweek without interruptions from a psychiatric 8 condition, and deal with usual stress encountered in the workplace. (AR 683). The ALJ found 9 the opinion was unpersuasive. (AR 33). Specifically, the ALJ found Plaintiff “herself told [Dr. 10 Livesay] that she stopped working due to physical rather than mental symptoms. Additionally, 11 mental status examinations were generally unremarkable. The record did not reveal that the 12 claimant had difficulty with regular attendance from a mental standpoint, nor did the examiner 13 provide support for such a limitation. The inconsistencies and unsupported statements render [Dr. 14 Livesay’s] opinion unpersuasive.” (AR 33). 15 Plaintiff argues that the ALJ “offers no explanation as to why he ordered a consultative 16 examination from a qualified examination source as directed by governing regulations and then 17 proceeded to discredit the same examination findings based on Plaintiff’s informal self- 18 assessment.” (Doc. No. 13 at 19-20). However, Plaintiff does not cite to, nor is the Court aware 19 of, any legal authority that requires an ALJ to justify “discrediting” a consultative examining 20 opinion aside from proper consideration under the new regulations. Cf. Woods, 32 F.4th at 792 21 (in rejecting an examining or treating doctor’s opinion as unsupported or inconsistent under the 22 new regulations, an ALJ must provide an explanation supported by substantial evidence). 23 Moreover, as above, the Court may decline to consider this issue entirely because Plaintiff fails to 24 identify or challenge most of the reasons given by the ALJ for finding Dr. Livesay’s opinion 25 unpersuasive in her opening brief. See Carmickle, 533 F.3d at 1161 n.2. Nonetheless, as to 26 supportability, the ALJ found that Dr. Livesay did not provide support for the assessed limitation 27 on Plaintiff’s ability to maintain regular attendance; and as to consistency, the ALJ noted that 28 mental status examinations in the record were “generally unremarkable” and “did not reveal that 1 [Plaintiff] had difficulty with regular attendance from a mental standpoint.”3 (AR 29-30, 33, 680- 2 82, 686-87, 743, 753, 766). Thus, the Court concludes that the ALJ’s finding that Dr. Livesay’s 3 opinion was unpersuasive is supported by substantial evidence after proper consideration of the 4 supportability and consistency factors. 5 3. Ekram Michiel, M.D. 6 In January 2021, Dr. Michiel completed a psychiatric evaluation of Plaintiff and opined 7 that Plaintiff is able to maintain attention and concentration to carry out simple job instructions; 8 she is able to relate and interact with coworkers, supervisors, and the general public while in the 9 routine setting of performing simple job instructions; and she is unable to maintain attention and 10 concentration to carry out an extensive variety of technical and/or complex instructions. (AR 11 688). The ALJ found the opinion was unpersuasive because Dr. Michiel failed to provide support 12 for the opined limitation “other than listing a diagnosis of adjustment disorder. Additionally, 13 [Plaintiff’s] ability to interpret a proverb and intact long-term memory undermine the opinion that 14 she is moderately to markedly limited in her ability to make judgments on complex work-related 15 decisions.” (AR 34). Plaintiff argues the ALJ “proceeds to play[s] doctor” and it is “improper for 16 the ALJ to determine, contrary to the findings of Dr. Michiel, that the diagnosis of adjustment 17 disorder is not sufficient to support the assessed limitations.” (Doc. No. 13 at 20). This argument 18 is misplaced. As noted above, under the new regulations “the more relevant the objective medical 19 evidence and supporting explanations presented by a medical source are to support” the medical 20 3 The ALJ also noted that Plaintiff told Dr. Livesay she stopped working due to physical rather than mental 21 symptoms, and in considering Dr. Michiel’s opinion the ALJ similarly noted that “other evidence of 22 record” shows Plaintiff stopped work due to issues of lack of work rather than mental issues. (AR 33-34). Plaintiff briefly argues that the ALJ “rejected” the mental health opinions “based on the apparent 23 assumption that Plaintiff is better qualified to assess her own mental abilities.” (Doc. No. 13 at 19-20). However, a plain reading of the ALJ’s decision does not indicate that he was relying on Plaintiff’s 24 assessment of her own mental health; rather, the factors for evaluating medical opinion evidence under the new regulations include “other factors that tend to support or contradict a medical opinion or prior 25 administrative medical finding.” 20 C.F.R. §§ 404.1520c(c)(5), 416.920c(c)(5). It was reasonable for the ALJ to consider Plaintiff’s own report that she stopped working for physical rather than mental symptoms 26 in evaluating the persuasiveness of Dr. Livesay and Dr. Michiel’s opinions as to limitations on her ability to work due to mental health limitations. Moreover, even assuming that the ALJ erred in relying on this 27 reason, as discussed herein the ALJ properly considered the supportability and consistency factors as required under the new regulations when considering the mental health opinions. See 20 C.F.R. §§ 28 404.1520c(b)(2), 416.920c(b)(2). 1 opinion, the more persuasive the medical opinion will be. 20 C.F.R. § 404.1520c(c)(1); 2 416.920c(c)(1) (emphasis added). Here, the ALJ reasonably found that Dr. Michiel failed to 3 provide support for the opined limitation in carrying out complex instructions, aside from the 4 single mental health diagnosis of adjustment disorder. (See Doc. No. 16 at 15) (“A diagnosis is 5 not equivalent to ‘objective medical evidence,’ which ‘means signs, laboratory findings, or 6 both.”). 7 Moreover, the housekeeping position has a DOT reasoning level of one, which requires a 8 “commonsense understanding to carry out simple one-or two-step instructions. [And deal] with 9 standardized situations with occasional or no variables in or from these situations encountered on 10 the job.” See DOT 323.687-014, available at 1991 WL 672783. Thus, even assuming, arguendo, 11 that the ALJ erred in considering Dr. Michiel’s opinion that Plaintiff was limited in carrying out 12 complex instructions, any error would be harmless because Plaintiff’s past relevant work of 13 housekeeper is consistent with the mental limitations assessed by Dr. Michiel. See Stout v. 14 Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006) (reviewing court cannot 15 consider an error harmless unless it “can confidently conclude that no reasonable ALJ, when fully 16 crediting the [evidence], could have reached a different disability determination.”). 17 VIII. CONCLUSION 18 A reviewing court should not substitute its assessment of the evidence for the ALJ’s. 19 Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must defer to an ALJ’s assessment 20 as long as it is supported by substantial evidence. 42 U.S.C. § 405(g). As discussed in detail 21 above, the ALJ properly considered the medical opinion evidence and properly assessed the RFC. 22 After review, the Court finds the ALJ’s decision is supported by substantial evidence and free of 23 harmful legal error. 24 Accordingly, it is ORDERED: 25 1. Plaintiff’s Motion for Summary Judgment (Doc. No. 13) is DENIED. 26 2. Defendant’s Cross-Motion for Summary Judgment (Doc. No. 16) is GRANTED and 27 the decision of the Commissioner of Social Security is AFFIRMED for the reasons set 28 forth above. 1 3. The Clerk is directed to enter judgment in favor of the Commissioner of Social 2 Security, terminate any pending motions/deadlines, and close this case. 3 “| Dated: _ February 29, 2024 Wihaw. Lh fareh Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14