(SS) Shah 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 PARIMAL K. SHAH, No. 2:22-cv-01830 AC 12 Plaintiff, 13 v. ORDER 14 MARTIN O’MALLEY, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying his application for disability insurance benefits (“DIB”) under Title II 20 of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-34.1 For the reasons that follow, 21 plaintiff’s motion for summary judgment will be GRANTED, and defendant’s cross-motion for 22 summary judgment will be DENIED. The matter will be reversed and remanded to the 23 Commissioner for further proceedings. 24 //// 25 //// 26 //// 27 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and who suffer from a mental or physical disability. 42 U.S.C. § 423(a)(1); Bowen v. City of New 28 York, 476 U.S. 467, 470 (1986). 1 I. PROCEDURAL BACKGROUND 2 Plaintiff applied for DIB on October 10, 2017. Administrative Record (“AR”) 178.2 The 3 disability onset date was initially alleged to be February 1, 2017. Id. Plaintiff later amended the 4 alleged onset date to November 30, 2016. AR 183. The agency denied the claim initially and 5 again on reconsideration. AR 70-98. On November 20, 2018, ALJ Serena Hong presided over 6 the hearing on plaintiff’s challenge to the disapprovals. AR 32 – 68 (transcript). Plaintiff, who 7 appeared with counsel Ana L. Molleda, was present and testified at the hearing. AR 32-33. Paul 8 Stanford, a Vocational Expert (“VE”), also testified. Id. On January 30, 2019, the ALJ found 9 plaintiff “not disabled” under Sections 216(i) and 223(d) of Title II of the Act, 42 U.S.C. 10 §§ 416(i), 423(d). AR 15-26 (decision), 27-31 (exhibit list). On May 29, 2019, the Appeals 11 Council denied plaintiff’s request for review, leaving the ALJ’s decision as the final decision of 12 the Commissioner of Social Security. AR 1-6 (decision and additional exhibit list). 13 Plaintiff appealed, and on June 4, 2020, this Court remanded for further proceedings. AR 14 2545–56. Two administrative hearings were held to obtain additional testimony of plaintiff and 15 of the medical and vocational experts. AR 2410–2500. On June 2, 2022, the ALJ issued a new 16 unfavorable decision finding plaintiff not disabled. AR 2359–93. On October 4, 2022, the 17 Appeals Council found no reason to review the decision (AR 2287–88), and the ALJ’s decision 18 became the final agency decision. Plaintiff filed this action on October 14, 2022, seeking judicial 19 review of the ALJ’s June 4, 2020 determination. ECF No. 1; see 42 U.S.C. § 405(g). The parties 20 consented to the jurisdiction of the magistrate judge. ECF No. 7. The parties’ cross-motions for 21 summary judgment, based upon the Administrative Record filed by the Commissioner, have been 22 fully briefed. ECF Nos. 17 (plaintiff’s amended summary judgment motion), 24 23 (Commissioner’s amended summary judgment motion), 27 (plaintiff’s reply). 24 II. FACTUAL BACKGROUND 25 Plaintiff was born in 1962, and accordingly was a person closely approaching advanced 26 age at the alleged onset date, and has subsequently changed age groups to a person of advanced 27 28 2 The AR is electronically filed at ECF No. 8. 1 age.3 AR 195. Plaintiff is a medical doctor, having earned his medical degree in 1985. AR 199. 2 He practiced medicine for 32 years, through November 2016. AR 224. Plaintiff also served as a 3 combat flight surgeon, an emergency room physician, and an ICU physician for the United States 4 Air Force, during the Iraq War. AR 38, 39, 1186, 1222, 1223. The Department of Veterans 5 Affairs (VA) has rated plaintiff 100 percent disabled for the same impairments plaintiff alleges in 6 his social security disability application. AR 256. Plaintiff alleged disability based on ischemic 7 heart disease, post traumatic stress disorder (“PTSD”), chronic pain, osteoporosis, glaucoma, 8 planter fasciitis, Gulf War Syndrome, diabetes type 2, tinnitus with hearing loss, and hiatal hernia. 9 AR 198. 10 III. LEGAL STANDARDS 11 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 12 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 13 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 14 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 15 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 16 Substantial evidence is “more than a mere scintilla,” but “may be less than a 17 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such 18 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 19 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 20 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 21 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 22 Although this court cannot substitute its discretion for that of the Commissioner, the court 23 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 24 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 25 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 26 court must consider both evidence that supports and evidence that detracts from the ALJ’s 27 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 28 3 See 20 C.F.R. § 404.1563 1 “The ALJ is responsible for determining credibility, resolving conflicts in medical 2 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 3 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 4 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 5 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 6 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 7 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 8 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 9 evidence that the ALJ did not discuss”). 10 The court will not reverse the Commissioner’s decision if it is based on harmless error, 11 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 12 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 13 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 14 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 15 IV. RELEVANT LAW 16 Disability Insurance Benefits and Supplemental Security Income are available for every 17 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) (DIB), 1381a (SSI). Plaintiff 18 is “disabled” if she is “‘unable to engage in substantial gainful activity due to a medically 19 determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 20 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). 21 The Commissioner uses a five-step sequential evaluation process to determine whether an 22 applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 23 Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation 24 process to determine disability” under Title II and Title XVI). The following summarizes the 25 sequential evaluation: 26 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 27 20 C.F.R. § 404.1520(a)(4)(i), (b). 28 1 Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, the claimant is not disabled. 2 Id. §§ 404.1520(a)(4)(ii), (c). 3 Step three: Does the claimant’s impairment or combination of 4 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to 5 step four. 6 Id. §§ 404.1520(a)(4)(iii), (d). 7 Step four: Does the claimant’s residual functional capacity make him capable of performing his past work? If so, the claimant is not 8 disabled. If not, proceed to step five. 9 Id. §§ 404.1520(a)(4)(iv), (e), (f). 10 Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. If not, 11 the claimant is disabled. 12 Id. §§ 404.1520(a)(4)(v), (g). 13 The claimant bears the burden of proof in the first four steps of the sequential evaluation 14 process. 20 C.F.R. §§ 404.1512(a) (“In general, you have to prove to us that you are blind or 15 disabled”), 416.912(a) (same); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the 16 sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not 17 disabled and can engage in work that exists in significant numbers in the national economy.” Hill 18 v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 19 V. THE ALJ’s DECISION 20 The ALJ made the following findings: 21 1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2021. 22 2. [Step 1] The claimant did not engage in substantial gainful activity 23 during the period from his alleged onset date of November 30, 2016 through his date last insured of December 31, 2021 (20 CFR 24 404.1571 et seq.) 25 3. [Step 2] Through the date last insured, the claimant had the following severe impairments: degenerative disc disease (DDD), 26 osteoarthritis of the hips, adhesive capsulitis of the bilateral shoulders, plantar fascial fibromatosis and coronary artery disease 27 (20 CFR 404.1520(c)) 28 1 4. [Step 3] Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically 2 equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 3 404.1526) 4 5. [Residual Functional Capacity (“RFC”)] After careful consideration of the entire record, the undersigned finds that, through 5 the date last insured, the claimant had the residual functional capacity (RFC) to perform light work as defined in 20 CFR 6 404.1567(b) except he cannot climb ladders, ropes or scaffolds, occasionally perform postural activities such as stooping, crouching 7 and crawling, can occasionally overhead reach, can frequently do other reaching, can do frequent handling, fingering and feeling, and 8 can stand and walk for 4 hours in an 8 hour day. 9 6. [Step 4] Through the date last insured, the claimant was capable of performing past relevant work as Utilization Review Coordinator. 10 This work did not require the performance of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 11 404.1565). 12 11. The claimant was not under a disability, as defined in the Social Security Act, at any time from November 30, 2016, the alleged onset 13 date, through December 31, 2021, the date last insured (20 CFR 404.1520(f)). 14 15 AR 2365-2385. As noted, the ALJ concluded that plaintiff was “not disabled” under Title II of 16 the Act. AR 2385. 17 VI. ANALYSIS 18 Plaintiff alleges that the ALJ erred by (1) improperly rejecting Dr. Rudnick’s mental RFC 19 findings, (2) improperly rejecting plaintiff’s subjective symptom testimony, and (3) by rejecting 20 the opinion of plaintiff’s treating cardiologist, Dr. Egan, and his VA physician, Dr. Nguyen. ECF 21 No. 17 at 11-20. 22 A. The ALJ Did Not Adequately Assess Dr. Rudnick’s Prescribed Limitations 23 Plaintiff argues that the ALJ erred by giving little weight to State agency physician Dr. 24 Rudnick’s opinion and failing to properly acknowledge and include assessed mental limitations. 25 ECF No. 17 at 11. “[A]n ALJ errs when he rejects a medical opinion or assigns it little weight 26 while doing nothing more than ignoring it.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 27 2014). The regulations require that an ALJ’s decision “explain” and “articulate” how persuasive 28 the ALJ finds “all of the medical opinions and all of the prior administrative medical findings in 1 [the] case record.” 20 C.F.R. § 404.1520c(b). Dr. Rudnick’s mental RFC findings constitute 2 “prior administrative medical findings,” which the ALJ was required to consider when 3 formulating her RFC assessment. 20 C.F.R. § 404.1513(a)(5) (defining a “prior administrative 4 medical finding” to include findings concerning an individual’s RFC). 5 Here, the ALJ committed legal error by mischaracterizing and/or ignoring the full content 6 of Dr. Rudnick’s findings regarding a limitation to simple, repetitive tasks (“SRTs”), and she 7 failed to provide any substantial evidence that supports her rejection of those medical findings. 8 AR 88, 90-91, 2377. The ALJ notes that the State Agency physicians found plaintiff’s mental 9 impairments “not severe” and wrote that she found that finding persuasive. Id. at 2377. 10 However, the actual assessment signed by Dr. Rudnick contains a note stating, “LIGHT WITH 11 MRFC [Mental Residual Functional Capacity] FOR SRTs IS PIVOTAL.” AR 90. An earlier 12 note in the opinion, written by another agency representative, states “There is now ample 13 information to assess as no more than capable of Simple Repetitive Tasks with limited public 14 and/or coworker contact. . . . Do you agree? If so, please provide EOD.” AR 88. The 15 Commissioner argues that these limitations were agency notes, not adopted by Dr. Rudnick, and 16 therefore do not constitute part of the medical opinion requiring analysis. ECF No. 24 at 12. The 17 Commissioner notes that the same argument made by plaintiff now was made at the appeals level, 18 and the appeals counsel informed plaintiff that these “notes made by staff” are not assessed as 19 medical opinions. Id. AR 2287. 20 The court rejects the Commissioner’s argument. The statement by the appeals counsel 21 regarding “notes made by staff” was in reference to notes by a different part of the record. In 22 case, the conclusory statement regarding staff notes provides no rationale whatsoever. AR 2287. 23 The medical opinion containing the limitation to simple repetitive tasks was signed and adopted 24 by Dr. Rudnick, even if it was initially drafted by another staff member. AR 88, 90-91. To the 25 extent Dr. Rudnick did not agree to that notation but signed the statement anyway, that ambiguity 26 should not weigh against the plaintiff such that the ALJ can simply ignore the limitation; the ALJ 27 was required to acknowledge and assess the limitation. Her failure to do so was error requiring 28 remand for further consideration. 1 B. The ALJ Improperly Rejected Plaintiff’s Subjective Testimony 2 The ALJ failed to adequately support her rejection of plaintiff’s subjective testimony 3 regarding pain and impairments. Evaluating the credibility of a plaintiff’s subjective testimony is 4 a two-step process. First, the ALJ must “determine whether the claimant has presented objective 5 medical evidence of an underlying impairment which could reasonably be expected to produce 6 the pain or other symptoms alleged. . . . In this analysis, the claimant is not required to show that 7 her impairment could reasonably be expected to cause the severity of the symptom she has 8 alleged; she need only show that it could reasonably have caused some degree of the symptom.” 9 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (internal citations omitted). Objective 10 medical evidence of the pain or fatigue itself is not required. Id. (internal citations omitted). 11 Second, if the ALJ does not find evidence of malingering, the ALJ may only reject the claimant’s 12 testimony by offering “specific, clear and convincing reasons for doing so.” Id. (internal citations 13 omitted). The Ninth Circuit has “repeatedly warned that ALJs must be especially cautious in 14 concluding that daily activities are inconsistent with testimony about pain, because impairments 15 that would unquestionably preclude work and all the pressures of a workplace environment will 16 often be consistent with doing more than merely resting in bed all day.” Id. at 1016. 17 Here, plaintiff testified that he could not continue to work because his work was 18 demanding and time sensitive, and his pain, combined with anxiety, made it “practically 19 unnegotiable.” AR 2420-2421, 2731. Plaintiff stated that the demands and time sensitive nature 20 of plaintiff’s work kept him “on edge” daily, and that he has flashbacks and nightmares involving 21 vivid, graphic memories of his combat experiences; he experiences anger, frustration, and 22 anxiety, all of which interfered with his work. AR 43, 48-49. Plaintiff experienced fatigue 23 throughout the day due to lack of sleep, and difficulty concentrating and completing tasks. AR 24 215, 220. Plaintiff becomes inpatient, intolerant of others, and struggles to avoid outwardly 25 expressing his symptoms and sometimes he pulls his hair in distress. AR 48, 49. 26 The ALJ found that plaintiff’s impairments could reasonably be expected to produce the 27 symptoms that he alleged. AR 2370. Nevertheless, the ALJ also found that plaintiff’s statements 28 concerning the intensity, persistence, and limiting effects of his symptoms were not entirely 1 consistent with the medical evidence and other evidence in the record. Id. Particularly with 2 respect to plaintiff’s testimony regarding mental limitations, the ALJ’s analysis is lacking. The 3 ALJ did not identify which of plaintiff’s PTSD symptoms she found were inconsistent with the 4 medical findings and observations; indeed, the ALJ’s analysis of the medical record discusses 5 physical limitations but makes no substantive reference to plaintiff’s mental limitations. AR 6 2370-2373. While the ALJ discussed medical opinions regarding the lack of a connection 7 between plaintiff’s PTSD symptoms and other physical conditions such as back pain and cardiac 8 disease (AR 2378-2380), she failed to address the impact of the PTSD symptoms themselves or 9 identify which of plaintiff’s PTSD symptoms she found were not consistent with the medical 10 findings and observations. The ALJ’s reasons for discounting plaintiff’s subjective testimony 11 relating to his mental limitations are therefore legally insufficient. The ALJ failed to describe 12 with any particularly how any of the above listed activities conflict with plaintiff’s alleged PTSD- 13 related mental limitations. “An ALJ must identify the specific testimony that lacks credibility, 14 provide clear and convincing reasons why the testimony is not credible, and identify the specific 15 evidence in the record which supports the ALJ’s determination.” Talbot v. Colvin, No. SACV 16 14-1935 JC, 2015 WL 5826808, at *4 (C.D. Cal. Sept. 30, 2015). The ALJ’s analysis fails to 17 meaningfully address plaintiff’s PTSD symptom testimony, and thus remand is required. 18 C. The ALJ’s Treatment of Physician Opinions 19 Plaintiff contends that the ALJ improperly rejected the medical opinions of Dr. Nguyen, 20 plaintiff’s primary care physician at the VA Outpatient Clinic (AR 2904) and Dr. Egan, plaintiff’s 21 treating cardiologist (AR 2281). ECF No. 17 at 16-20. With respect to medical opinions, new 22 regulations apply to claims filed on or after March 27, 2017, which change the framework 23 evaluation of medical opinion evidence. Revisions to Rules Regarding the Evaluation of Medical 24 Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. The 25 new regulations provide that the ALJ will no longer “give any specific evidentiary weight ... to 26 any medical opinion(s)” but instead must consider and evaluate the persuasiveness of all medical 27 opinions or prior administrative medical findings from medical sources and evaluate their 28 //// 1 persuasiveness. Revisions to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 2 C.F.R. § 404.1520c(a) and (b). 3 The factors for evaluating the persuasiveness of a physician opinion include 4 supportability, consistency, relationship with the claimant (including length of the treatment, 5 frequency of examinations, purpose of the treatment, extent of the treatment, and the existence of 6 an examination), specialization, and “other factors that tend to support or contradict a medical 7 opinion or prior administrative medical finding” (including, but not limited to, “evidence showing 8 a medical source has familiarity with the other evidence in the claim or an understanding of our 9 disability program's policies and evidentiary requirements”). 20 C.F.R. § 404.1520c(c)(1)-(5). 10 Supportability and consistency are the most important factors, and therefore the ALJ is required 11 to explain how both factors were considered. 20 C.F.R. § 404.1520c(b)(2). Supportability and 12 consistency are defined in the regulations as follows: 13 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 14 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 15 administrative medical finding(s) will be. 16 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 17 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 18 finding(s) will be. 19 20 C.F.R. § 404.1520c(c)(1)-(2). 20 The ALJ may, but is not required to, explain how the other factors were considered. 20 21 C.F.R. § 404.1520c(b)(2). However, when two or more medical opinions or prior administrative 22 findings “about the same issue are both equally well-supported ... and consistent with the record 23 ... but are not exactly the same,” the ALJ must explain how “the other most persuasive factors in 24 paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. § 404.1520c(b)(3). The Ninth 25 Circuit has confirmed that the new regulatory framework eliminates the “treating physician rule” 26 and displaces the longstanding case law requiring an ALJ to provide “specific and legitimate” or 27 “clear and convincing” reasons for rejecting a treating or examining doctor’s opinion. Woods v. 28 Kijakazi, 32 F.4th 785 (9th Cir. 2022). Still, in rejecting any medical opinion as unsupported or 1 inconsistent, an ALJ must provide an explanation supported by substantial evidence. Id. In sum, 2 the ALJ “must ‘articulate ... how persuasive’ [he or she] finds ‘all of the medical opinions’ from 3 each doctor or other source ... and ‘explain how [he or she] considered the supportability and 4 consistency factors’ in reaching these findings.” Id. (citing 20 C.F.R. §§ 404.1520c(b), 5 404.1520(b)(2)). 6 Here, plaintiff contends that the ALJ discredited the opinions of claimant’s treating 7 cardiologist, Dr. Egan, based solely upon her consideration of the non-treating, non-examining 8 cardiologist, retained medical expert Dr. Shilling. ECF No. 17 at 16. Specifically, Dr. Egan 9 opined that emotional stress may cause increased heart rate and blood pressure, which increases 10 the risk of recurrent heart attack, and that this risk is augmented in PTSD patients. AR 2281. On 11 that basis, Dr. Egan recommended that plaintiff adjust his work schedule to avoid undue 12 emotional stress, and he opined that a four-hour daily work schedule will minimize the possibility 13 of future employment stress resulting in a cardiovascular event. Id. Dr. Shilling, on the other 14 hand, opined that there is only a remote possibility that PTSD symptoms could precipitate a 15 cardiovascular event; and he believed that plaintiff could work more than four hours, but did not 16 articulate a maximum. AR 2441. 17 In her evaluation of the opinions, the ALJ found Dr. Egan’s opinion “unpersuasive” 18 because Dr. Egan’s opinion lacked supportive findings, as plaintiff had no anginal related pain or 19 use of sublingual nitroglycerin. AR 2378 (citing AR 2876, 2888); see also AR 2226 (noting Dr. 20 Egan’s own treatment notes that Plaintiff improved from a cardiac standpoint). See 20 C.F.R. § 21 404.1520c(c)(1) (consideration of the supportability factor); see also Tonapetyan v. Halter, 242 22 F.3d 1144, 1149 (9th Cir. 2001) (an ALJ need not accept physician opinions that are unsupported 23 by clinical findings or a physician’s own treatment notes). Additionally, the ALJ explained that 24 Dr. Egan’s opinion was inconsistent with the record that showed no ongoing abnormal findings 25 related to PTSD (Tr. 427, 1186, 1606–07, 1672, 1689, 2157, 2871, 2883, 2894–96). Moreover, 26 Dr. Egan’s opinion was inconsistent with Dr. Shilling’s “persuasive” testimony that the link 27 between emotional stress and PTSD in causing cardiac issues was tenuous, at best (Tr. 2378, 28 citing Tr. 2430, 2432–33). See 20 C.F.R. § 404.1520c(c)(2) (consideration of consistency factor); 1 see also Towne v. Berryhill, 717 Fed. App’x. 705, 707 (9th Cir. 2017) (unpublished) (an ALJ 2 may discount a medical opinion if it is inconsistent with other evidence). The court agrees with 3 defendant that the ALJ sufficiently addressed supportability and consistency in deciding to 4 discredit Dr. Egan’s opinion testimony. 5 As to Dr. Nguyen, plaintiff limits his arguments to Dr. Nguyen’s testimony concerning 6 work limitations related to PTSD and the ALJ’s failure to assert any substantial evidence in the 7 record that discredits Dr. Nguyen’s opinions. ECF No. 17 at 19. Dr. Nguyen opined that 8 plaintiff’s PTSD limits concentration, increases irritability, increases fatigue, and heightens 9 chronic pain and additional mental stressors. AR 2904. Specifically, Dr. Nguyen opined that 10 plaintiff’s “prognosis is stable whereas he is not expected to recover to the point of returning to 11 duties required of his profession.” Id. Plaintiff’s duties reviewing other physician’s utilization of 12 medical services required plaintiff to use his professional knowledge, training, and expertise as a 13 family medicine practitioner in order to make medical evaluations and assessments and render 14 medical opinions and recommendations. AR 2470-2471, 2487. Dr. Nguyen’s opinions relate to 15 plaintiff’s abilities as a medical practitioner as well as plaintiff’s work in utilization review. 16 The ALJ discredited Dr. Nguyen’s opinions, finding them not supported by the treatment 17 record, plaintiff’s activities, and Dr. Shilling’s opinion. AR 2379. Referring to plaintiff’s mental 18 capacities, the ALJ found that Dr. Nguyen’s opinions were not consistent with plaintiff studying 19 for and taking his medical board, and plaintiff’s international travel (CAR 2380). The court 20 agrees with plaintiff that plaintiff’s activities, including taking his medical board exams and travel 21 to India, do not undermine Dr. Nguyen’s testimony regarding his PTSD symptoms, because these 22 activities do not clearly translate to the work environment nor do they clearly actually undermine 23 Dr. Nguyen’s testimony, which is specific to the types of ongoing day-to-day pressures and 24 demands over time that accompany plaintiff’s profession. Further, though the ALJ discussed the 25 PTSD findings in relationship to the potential for further cardiac incidents, the evidence that the 26 ALJ asserts undermines Dr. Nguyen’s opinion does not clearly address or undermine the mental 27 limitations articulated by Dr. Nguyen. AR 2379-2381. Because the ALJ did not clearly and 28 specifically address Dr. Nguyen’s assessed mental limitations, remand is required. 1 D. Remand 2 The undersigned finds that the ALJ’s errors are harmful and remand for further 3 || proceedings by the Commissioner is necessary. An error is harmful when it has some 4 || consequence on the ultimate non-disability determination. Stout v. Comm’r, Soc. Sec. Admin., 5 || 454 F.3d 1050, 1055 (9th Cir. 2006). The ALJ’s errors in this matter are harmful; plaintiffs 6 || subjective testimony, properly considered, may very well result in a more restrictive residual 7 || functional capacity assessment, which may in turn alter the finding of non-disability. The same is 8 | true of Dr. Rudnick and Dr. Nguyen’s opinions, particularly as they relate to plaintiff's PTSD 9 || symptoms and non-exertional limitations. 10 It is for the ALJ to determine in the first instance whether plaintiff has severe impairments 11 | and, ultimately, whether she is disabled under the Act. See Marsh v. Colvin, 792 F.3d 1170, 1173 12 | (9th Cir. 2015) (“the decision on disability rests with the ALJ and the Commissioner of the Social 13 || Security Administration in the first instance, not with a district court”). “Remand for further 14 | administrative proceedings is appropriate if enhancement of the record would be useful.” 15 || Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Here, further development of the record 16 || consistent with this order is necessary, and remand for further proceedings is the appropriate 17 || remedy. 18 VI. CONCLUSION 19 For the reasons set forth above, IT IS HEREBY ORDERED that: 20 1. Plaintiffs motion for summary judgment (ECF No. 17), is GRANTED; 21 2. The Commissioner’s cross-motion for summary judgment (ECF No. 24), is DENIED; 22 3. This matter is REMANDED to the Commissioner for further consideration consistent 23 | with this order; and 24 4. The Clerk of the Court shall enter judgment for plaintiff, and close this case. 25 || DATED: March 14, 2024 ~ 26 Hhthtin— Clare ALLISON CLAIRE 27 UNITED STATES MAGISTRATE JUDGE 28 13