(SS) Sidhu v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KULWANT SINGH SIDHU, Case No. 1:23-cv-01358-SKO 11 Plaintiff, 12 v. ORDER ON PLAINTIFF’S SOCIAL SECURITY COMPLAINT 13 MARTIN O’MALLEY, Commissioner of Social Security,1 14 Defendant. (Doc. 1) 15 _____________________________________/ 16 17 18 I. INTRODUCTION 19 Plaintiff Kulwant Singh Sidhu (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his application for 21 disability insurance benefits (“DIB”) under the Social Security Act (the “Act”). (Doc. 1.) The matter 22 is currently before the Court on the parties’ briefs, which were submitted, without oral argument, to 23 the Honorable Sheila K. Oberto, United States Magistrate Judge.2 24 II. FACTUAL BACKGROUND 25 On May 31, 2019, Plaintiff protectively filed a claim for DIB payments, alleging he became 26 1 On December 20, 2023, Martin O’Malley was named Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/history/commissioners.html. He is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 28 of the Commissioner shall, in [their] official capacity, be the proper defendant.”). 1 disabled on July 2, 2014, due to chronic back injury, disc herniation in neck, degenerative disc 2 disorder, depression, anxiety, chronic pain, quadriplegia, and major depressive disorder. 3 (Administrative Record (“AR”) 21, 105, 106, 128, 129, 350, 358, 380, 396.) 4 Plaintiff was born on December 2, 1989, and was 29 years old on the date last insured. (AR 5 33, 66, 86, 105, 128, 358, 380, 396.) He has a high school education, and previously worked as a 6 dialysis technician and a phlebotomist. (AR 33, 48, 351.) 7 A. Relevant Evidence of Record3 8 In May 2017, Plaintiff presented for an initial psychiatric evaluation with Manolito V. 9 Castillo, M.D. (AR 1067–68.) He complained of worsening depression, sleep disturbance, 10 irritability, frustration, forgetfulness, and problems concentrating. (AR 1067.) Upon mental status 11 examination, Plaintiff was “not oriented” to the month or day of the week, but was oriented to the 12 year and place. (AR 1068.) His mood was “depressed.” (AR 1068.) Plaintiff denied having suicidal 13 or homicidal thoughts or any delusional hallucinations, and Dr. Castillo did not observe any thought 14 disturbance. (AR 1068.) Plaintiff was able to recall three unrelated objects immediately and after 15 five minutes, and was able to perform serial three subtractions beginning with 20, which Dr. Castillo 16 noted showed “good memory and attention span presently.” (AR 1068.) He was unable to spell the 17 word ‘world’ backwards. (AR 1068.) Plaintiff’s intellect was “average” and his insight and 18 judgment were “good.” (AR 1068.) Dr. Castillo diagnosed Plaintiff with major depressive disorder 19 and prescribed medication. (AR 1068.) 20 Following the evaluation, Plaintiff saw Dr. Castillo monthly from May 2017 to August 2017, 21 and then again from January 2018 to December 2019, for treatment and medication management. 22 (AR 1073–75, 1077–93, 1711–13.) Plaintiff demonstrated anxious and depressed mood from May 23 2017 to August 2018, at which point his mood was “stable.” (AR 1073–75, 1077–1086.) 24 In September 2017, Plaintiff was referred for a consultation for a neuropsychiatric disorder 25 with Darryl Gerlak, LCSW. (AR 685.) He was noted to have had a “significant decline in 26 functioning within the past 6 months,” including “significant short term memory loss” and 27 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 depression. (AR 685.) LCSW Gerlak noted Plaintiff was “very pleasant” but “struggled to answer 2 questions as he would forget mid-sentence what this writer asked him.” (AR 685.) 3 In March and April 2018, physical therapy notes documented that Plaintiff’s mental status 4 and cognitive function “appear[ed] impaired” due to “memory loss.” (AR 1001, 1004, 1008, 1010, 5 1011, 1013, 1016, 1018, 1188.) 6 Plaintiff presented for a psychiatric evaluation with Ekram Michiel, M.D., in May 2018. 7 (AR 733–57.) Plaintiff complained of anxiety, depression, and poor memory. (AR 733, 734.) 8 Upon examination, Dr. Michiel noted Plaintiff’s speech was “normal in process with mild latency,” 9 with “intermittent” eye contact, a “depressed” mood, no suicidal ideation, and a “goal directed” 10 thought process with “periods of halting.” (AR 735.) When assessing the cognitive skill of 11 orientation, Dr. Michiel noted that Plaintiff “said that he does not remember the days of the 12 weekdays, ‘Thursday’ and then he said, ‘No, it’s Friday’ and that today was May 5th instead of 13 May 18th and then he looked at his phone and he said, ‘Oh yeah, the evaluation was on May 18th.’” 14 (AR 735.) Dr. Michiel noted Plaintiff’s attention, concentration, and immediate recall were 15 unimpaired, and he was able to do simple math calculations. (AR 735–36.) Plaintiff mistakenly 16 identified the current president and his abstract thinking was “concrete.” (AR 736.) He was also 17 unable to recall what he ate the night before and the birthdays and ages of his children. (AR 736.) 18 Dr. Michele concluded that Plaintiff was “unable to maintain attention and concentration to carry 19 out simple job instructions.” (AR 736.) 20 Plaintiff began undergoing psychotherapy with David S. Sommers, Ph.D., in July 2018. (AR 21 1084.) In November 2018, Dr. Castillo noted Plaintiff’s mood was “improved.” (AR 1089.) 22 Plaintiff’s mood was “depressed and anxious” in January 2019, but “stable” in March and June 2019. 23 (AR 1091–93.) 24 In January 2019, a progress note from neurologist Perminder Bhatia, M.D. indicated Plaintiff 25 was experiencing moderate “mental cloudiness.” (AR 1042.) From August to December 2019, 26 Plaintiff had “anxious” mood. (AR 1711–13.) 27 In April 2019, Plaintiff presented for a follow up appointment with Dr. Bhatia (AR 1033– 28 34.) Dr. Bhatia noted that Plaintiff “still ha[d] significant depression.” (AR 1033.) Upon 1 examination, Plaintiff’s general appearance, behavior, “stream of talk,” mood, content of thought, 2 and “[h]igher mental functions” were normal. (AR 1033.) 3 From March to August 2020, Dr. Castillo noted Plaintiff’s mood as “anxious” and 4 “depressed.” (AR 1924–27.) Plaintiff’s mood had “improved” in November 2020. (AR 1928.) 5 That same month, Plaintiff underwent a mental status evaluation with consultative examiner Lauri 6 Steinbeck, Psy.D. (AR 1812–16.) Dr. Steinbeck found Plaintiff’s attention and memory were 7 impaired, and his judgment limited. (AR 1814–15.) 8 In February 2021, Plaintiff’s mood was “anxious,” and Dr. Castillo noted that Plaintiff “had 9 a panic attack while he was driving and an ambulance was called in to help him.” (AR 1930.) Dr. 10 Castillo observed Plaintiff’s mood was “depressed” in March 2021, and recommended “pursuing 11 therapy rather than focusing on antidepressant medications.” (AR 1931.) 12 In April 2021, Plaintiff’s mood was “sad,” and he reported he was still looking for a therapist. 13 (AR 1932.) His mood was “improved” in May 2021, and anxious and depressed yet “manageable” 14 in June and July 2021. (AR 1935–37.) 15 In August 2021, Plaintiff presented to the emergency department for evaluation of 16 prescription drug abuse. (AR 1969–75.) On examination, Plaintiff had a depressed mood, fair 17 insight, and poor judgment. (AR 1974.) The provider concluded that Plaintiff’s “presentation and 18 history are consistent with the diagnosis of unspecified mood disorder, unspecified anxiety disorder, 19 hypnotic/sedative use disorder.” (AR 1974.) Voluntary admission to the inpatient psychiatric unit 20 was recommended. (AR 1975.) That same month, Dr. Castillo noted Plaintiff’s mood was 21 “depressed and anxious.” (AR 2077.) 22 Plaintiff presented to the emergency department in September 2021 for suicidal ideation he 23 had been experiencing for the past two weeks that had become severe. (AR 2080–98.) He was 24 placed on a psychiatric hold. (AR 2079, 2081.) A mental status exam following his psychiatric 25 inpatient hospitalization indicated Plaintiff had “racing thought[s]” and his insight and judgment was 26 “impaired and forgetful.” (AR 2001–02.) 27 B. Administrative Proceedings 28 The Commissioner denied Plaintiff’s applications for benefits initially on October 24, 2019, 1 and again on reconsideration on February 20, 2020. (AR 21, 147–51, 155–61.) Consequently, 2 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 162–97.) At the 3 hearing on March 4, 2022, Plaintiff appeared with counsel by telephone and testified before an ALJ 4 as to his alleged disabling conditions. (AR 48–60.) A Vocational Expert (“VE”) also testified at the 5 hearing. (AR 61–64.) 6 C. The ALJ’s Decision 7 In a decision dated April 26, 2022, the ALJ found that Plaintiff was not disabled, as defined 8 by the Act. (AR 21–35.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 9 § 404.1520. (AR 24–35.) The ALJ decided that Plaintiff last met the insured status requirements of 10 the Act on September 30, 2019, and he had not engaged in substantial gainful activity from July 2, 11 2014, the alleged onset date, through September 30, 2019 (step one). (AR 24.) At step two, the ALJ 12 found Plaintiff’s following impairments to be severe: anxiety, major depressive disorder, multi-level 13 degenerative disc disease of the cervical spine status-post fusion, obesity, and headaches. (AR 24.) 14 Plaintiff did not have an impairment or combination of impairments that met or medically equaled 15 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step 16 three). (AR 25–27.) 17 The ALJ assessed Plaintiff’s residual functional capacity (RFC)4 and applied the assessment 18 at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, 19 we assess your residual functional capacity . . . . We use this residual functional capacity assessment 20 at both step four and step five when we evaluate your claim at these steps.”). The ALJ determined 21 that Plaintiff had the RFC: 22 to perform sedentary work as defined in 20 CFR 404.1567(a) with the following additional limitations: occasional climbing ramps and stairs; no climbing ladders, 23 ropes, or scaffolds; occasional balancing (as balance is defined in the SCO), stooping, kneeling, crouching, and crawling; frequent reaching, handling, and 24 25 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 26 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an 27 individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 1 twisting of neck from side to side; the claimant must alternate between sitting and 2 standing by standing for 5 minutes after every 1 hour of sitting remaining on task; the avoidance of unprotected heights and workplace hazards; no pushing or pulling 3 with the upper or lower extremities; no work with vibrations; simple, routine tasks not at a production pace; occasional interactions with supervisors and coworkers; 4 no interactions with the general public; and occasional changes to a routine work setting. 5 6 (AR 27–33.) Although the ALJ recognized that Plaintiff’s impairments “could have reasonably been 7 expected to cause the above alleged symptoms reasonably related to those impairments[,]” the ALJ 8 rejected Plaintiff’s subjective testimony as “not entirely consistent with the medical evidence and 9 other evidence for the reasons explained in this decision.” (AR 32.) 10 The ALJ determined that Plaintiff could not perform his past relevant work (step four) but 11 that, given his RFC, he could perform a significant number of jobs in the national economy (step 12 five). (AR 34–35.) In making this determination, the ALJ posed a series of hypothetical questions 13 to the VE. (AR 62–63.) The VE testified that a person with the RFC specified above could perform 14 the jobs of document preparer, final assembler, and table worker. (AR 62–63.) The ALJ ultimately 15 concluded Plaintiff was not disabled at any time from July 2, 2014, the alleged onset date, through 16 September 30, 2019, the date last insured. (AR 35.) 17 Plaintiff sought review of this decision before the Appeals Council, which denied review 18 on May 2, 2023. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 19 Commissioner. 20 C.F.R. § 404.981. 20 III. LEGAL STANDARD 21 A. Applicable Law 22 An individual is considered “disabled” for purposes of disability benefits if they are unable 23 “to engage in any substantial gainful activity by reason of any medically determinable physical or 24 mental impairment which can be expected to result in death or which has lasted or can be expected 25 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 26 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 27 impairment or impairments are of such severity that [they are] not only unable to do [their] previous 28 work but cannot, considering [their] age, education, and work experience, engage in any other kind 1 of substantial gainful work which exists in the national economy.” Id. at § 423(d)(2)(A). 2 “The Social Security Regulations set out a five-step sequential process for determining 3 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 4 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided 5 the following description of the sequential evaluation analysis: 6 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 7 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 8 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. 9 pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable 10 of performing [their] past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . 11 . to perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 12 13 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 14 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 15 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 16 “The claimant carries the initial burden of proving a disability in steps one through four of 17 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 18 1989)). “However, if a claimant establishes an inability to continue [their] past work, the burden 19 shifts to the Commissioner in step five to show that the claimant can perform other substantial 20 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 21 B. Scope of Review 22 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 23 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 24 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is 25 ‘more than a mere scintilla,’ “ and means only “such relevant evidence as a reasonable mind might 26 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 27 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). See also Ford v. Saul, 930 F.3d 28 1141, 1153–54 (9th Cir. 2020). “This is a highly deferential standard of review . . . .” Valentine v. 1 Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The court will uphold the ALJ’s 2 conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., 3 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more 4 than one rational interpretation, the court may not substitute its judgment for that of the 5 Commissioner.”) (citations omitted). 6 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 7 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court 8 must determine whether the Commissioner applied the proper legal standards and whether 9 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 10 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be 11 affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 12 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 13 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 14 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 15 1993)). 16 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 17 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 18 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 19 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 20 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Circ. 2008) (quoting Robbins v. Social Sec. Admin., 21 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he burden of showing that an error is harmful normally 22 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 23 (2009) (citations omitted). 24 IV. DISCUSSION 25 Plaintiff contends the ALJ erred in the consideration of the persuasiveness of consultative 26 examiner Dr. Michiel’s opinion because the ALJ’s analysis was based on a mischaracterized and 27 incomplete record. Plaintiff also contends the ALJ failed to articulate clear and convincing reasons 28 for rejecting his subjective-symptom testimony. Plaintiff therefore requests that this Court remand 1 for further proceedings. (Docs. 15, 23.) 2 The Commissioner contends that the ALJ reasonably considered Dr. Michel’s opinion, and 3 that substantial evidence supports the ALJ’s evaluation of Plaintiff’s symptoms. (Doc. 22.) 4 Because further proceedings are required regarding the opinion of Dr. Michiel, the Court 5 does not reach the subjective-symptom-testimony issue.5 6 A. Legal Standard 7 Plaintiff’s claim for DIB is governed by the agency’s revised regulations concerning how 8 ALJs must evaluate medical opinions for claims filed on or after March 27, 2017. 20 C.F.R. § 9 404.1520c. The regulations set “supportability” and “consistency” as “the most important factors” 10 when determining the opinions’ persuasiveness. 20 C.F.R. § 404.1520c(b)(2). And although the 11 regulations eliminate the “physician hierarchy,” deference to specific medical opinions, and 12 assigning “weight” to a medical opinion, the ALJ must still “articulate how [they] considered the 13 medical opinions” and “how persuasive [they] find all of the medical opinions.” 20 C.F.R. § 14 404.1520c(a)–(b). 15 The Ninth Circuit has issued the following guidance regarding treatment of physicians’ 16 opinions after implementation of the revised regulations: 17 The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians on 18 account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) (“We 19 will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . . , including those from your medical sources.”). Our 20 requirement that ALJs provide “specific and legitimate reasons” for rejecting a treating or examining doctor’s opinion, which stems from the special weight given 21 to such opinions, see Murray, 722 F.2d at 501–02, is likewise incompatible with the revised regulations. Insisting that ALJs provide a more robust explanation when 22 discrediting evidence from certain sources necessarily favors the evidence from 23 those sources—contrary to the revised regulations. 24 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Accordingly, under the new regulations, “the 25 26 5 See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for remand.”); see also Rendon G. v. Berryhill, No. EDCV 27 18-0592-JPR, 2019 WL 2006688, at *8 (C.D. Cal. May 7, 2019); Harris v. Colvin, No. 13-cv-05865 RBL, 2014 WL 4092256, at *4 (W.D. Wash. Aug. 11, 2014); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 28 (C.D. Cal. 2008) (“[The] Court need not address the other claims plaintiff raises, none of which would provide plaintiff 1 decision to discredit any medical opinion, must simply be supported by substantial evidence.” Id. 2 at 787. 3 In conjunction with this requirement, “[t]he agency must ‘articulate . . . how persuasive’ it 4 finds ‘all of the medical opinions’ from each doctor or other source, and ‘explain how [it] 5 considered the supportability and consistency factors’ in reaching these findings.” Woods, 32 F.4th 6 at 792 (citing 20 C.F.R. § 404.1520c(b)). See also id. § 416.920c(b). “Supportability means the 7 extent to which a medical source supports the medical opinion by explaining the ‘relevant . . . 8 objective medical evidence.’” Id. at 791–92 (quoting 20 C.F.R. § 404.1520c(c)(1)). See also id. § 9 416.920c(c)(1). “Consistency means the extent to which a medical opinion is ‘consistent . . . with 10 the evidence from other medical sources and nonmedical sources in the claim.’” Id. at 792 (quoting 11 20 C.F.R. § 404.1520c(c)(2)). See also id. § 416.920c(c)(2). 12 As the Ninth Circuit also observed, 13 The revised regulations recognize that a medical source’s relationship with the claimant is still relevant when assessing the persuasiveness of the source’s opinion. 14 See id. § 404.1520c(c)(3). Thus, an ALJ can still consider the length and purpose of the treatment relationship, the frequency of examinations, the kinds and extent of 15 examinations that the medical source has performed or ordered from specialists, and whether the medical source has examined the claimant or merely reviewed the 16 claimant’s records. Id. § 404.1520c(c)(3)(i)–(v). However, the ALJ no longer needs 17 to make specific findings regarding these relationship factors. 18 Woods, 32 F.4th at 792. “A discussion of relationship factors may be appropriate when ‘two or 19 more medical opinions . . . about the same issue are . . . equally well-supported . . . and consistent 20 with the record . . . but are not exactly the same.’” Id. (quoting § 404.1520c(b)(3)). See also id. § 21 416.920c(b)(3). “In that case, the ALJ ‘will articulate how [the agency] considered the other most 22 persuasive factors.’” Id. Finally, if the medical opinion includes evidence on an issue reserved to 23 the Commissioner, the ALJ need not provide an analysis of the evidence in his decision, even in 24 the discussions required by 20 C.F.R. § 404.1520c. See 20 C.F.R. § 404.1520b(c)(3). 25 With these legal standards in mind, the Court reviews the weight given to Dr. Michiel’s 26 opinion. 27 B. Analysis 28 The ALJ did not find Dr. Michiel’s opinion that Plaintiff was “unable to maintain attention 1 and concentration to carry out simple job instructions” persuasive, reasoning that it was 2 not supported by this physician’s examination of the claimant. At the consultative 3 examination, [Plaintiff] was able to do digit span four out of five forwards and backwards correctly. (10F). Moreover, the opinion is not consistent with the 4 findings of [Plaintiff’s] treating providers. Mental status examination findings reported by [Plaintiff’s] treating providers were generally intact but for a 5 depressed/anxious mood. (See e.g., 8F/9; 15F/12; 17F/1, 9, 12, 14). [Plaintiff] displayed a good memory, average intellect, normal fund of knowledge, intact 6 attention and concentration, and good insight/judgement. (See e.g., 8F/9; 15F/12; 7 17F/1, 9, 12, 14). 8 (AR 32.) 9 An ALJ may not cherry-pick evidence in evaluating a medical opinion. Buethe v. Comm’r 10 of Soc. Sec., No. 2:20-cv-552-KJN, 2021 WL 1966202, at *4 (E.D. Cal. May 17, 2021) (collecting 11 cases); Cruz v. Kijakazi, No. 1:21-cv-01248-AWI-HBK, 2023 WL 1447855, at *5 (E.D. Cal. Feb. 12 1, 2023) (“Even under the new regulations, the ALJ may not ‘cherry-pick’ evidence in discounting 13 a medical opinion.”). See also 42 U.S.C. § 423(d)(5)(B) (requiring an ALJ base the decision on “all 14 the evidence available in the [record].”); Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (the 15 court may not affirm where the ALJ “pick[ed] out a few isolated instances of improvement” to 16 support the denial of benefits). Here, the ALJ isolated only one examination finding by Dr. Michiel 17 that the ALJ concluded undermined his opinion (i.e., digit span test), but ignored the other findings 18 by Dr. Michiel that support it, such as that Plaintiff did “not remember the days of the weekdays,” 19 that he initially mistakenly identified the current president, and that he was unable to recall what he 20 ate the night before and the birthdays and ages of his children. (AR 736.) 21 The medical evidence on which the ALJ relies in evaluating the consistency of Dr. Michiel’s 22 opinion is also misleading. AR 691 (“8F/9”) is the second page of a June 2017 consultation visit at 23 a neuroscience clinic that does not document a mental status examination. AR 1067 (“17F/1”) is the 24 first page of Dr. Castillo’s initial psychiatric evaluation in May 2017, and does not document mental 25 status examination results. In fact, those results, included on the following page, are not as 26 “generally intact” as the ALJ represents. While they do report some normal findings, they also 27 document Plaintiff’s lack of orientation to the month or day of the week and his inability to spell the 28 word “WORLD” backwards correctly. (See AR 1068.) Finally, the mental status examinations in 1 AR 1075 (“17F/9”), 1078 (“17F/12), and 1080 (“17F/14”) are directed only to Plaintiff’s mood and 2 thought processes and do not, contrary to the ALJ’s characterization, assess Plaintiff’s memory, 3 intellect, fund of knowledge, attention, concentration, insight, or judgment. 4 Other medical records that do include such assessments, and which are consistent with Dr. 5 Michiel’s opinion, the ALJ (at best) failed to connect to their persuasiveness findings or (at worst) 6 willfully ignored. For example, in September 2017, LCSW Gerlak noted Plaintiff had a “significant 7 decline in functioning within the past 6 months,” including “significant short term memory loss” 8 and depression. (AR 685.) Specifically, LCSW Gerlak noted Plaintiff “struggled to answer 9 questions as he would forget mid-sentence what this writer asked him.” (AR 685.) In March and 10 April 2018, physical therapy notes documented that Plaintiff’s mental status and cognitive function 11 “appear[ed] impaired” due to “memory loss.” (AR 1001, 1004, 1008, 1010, 1011, 1013, 1016, 1018, 12 1188.) A progress note from Dr. Bhatia in January 2019 indicated Plaintiff was experiencing 13 moderate “mental cloudiness.” (AR 1042.) 14 After the relevant period,6 Dr. Steinbeck found Plaintiff’s attention and memory were 15 impaired, and his judgment limited. (AR 1814–15.) During an evaluation at the emergency 16 department, Plaintiff demonstrated poor judgment, and voluntary admission to the inpatient 17 psychiatric unit was recommended. (AR 1974, 1975.) Plaintiff’s worsening symptomology 18 ultimately resulted in him being placed under an inpatient psychiatric hold (AR 2080–98), after 19 which his insight and judgment was noted to be “impaired and forgetful.” (AR 2001–02.) An 20 independent review of the record therefore reflects that, contrary to the ALJ’s conclusion, Dr. 21 Michiel’s opinion that Plaintiff is “unable to maintain attention and concentration to carry out simple 22 job instructions” is consistent with evidence in the medical record. 23 The Court is aware of the general proposition that ALJ’s are to resolve ambiguities and 24 conflicts in the record. Ford, 950 F.3d at 1154. It is also mindful of the deference desired by the 25 6 As stated by the Ninth Circuit: “We think it is clear that reports containing observations made after the period for 26 disability are relevant to assess the claimant’s disability. It is obvious that medical reports are inevitably rendered retrospectively and should not be disregarded solely on that basis.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 27 1988) (internal citations omitted). See also Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1228-29 (9th Cir. 2010) (“[E]vidence post-dating the [date last insured] is probative of . . . pre-[date last insured] disability.”); Lester v. Chater, 28 81 F.3d 821, 832) (9th Cir. 1995) (“‘[M]edical evaluations made after the expiration of a claimant’s insured status are 1 agency in promulgating these revised regulations. See REVISIONS TO RULES, 82 Fed. Reg. 5844- 2 01 at *5860 (“[The new regulations are] essential for [the agency’s] administration of a massive 3 and complex nationwide disability program where the need for efficiency is self-evident.”). 4 However, the text of the regulations explicitly requires an explanation of how the ALJ considered 5 the supportability and consistency of an opinion. 20 C.F.R. § 404.1520c(b)(2). Harmonizing this 6 requirement with current Ninth Circuit law prohibiting cherry-picking and requiring a detailed and 7 thorough summary of conflicting evidence, and an interpretation and findings thereon, the ALJ 8 must explicitly address evidence that supports and is consistent with a less-than-persuasive medical 9 opinions, and should this evidence fail to persuade, the ALJ must provide legally sufficient reasons. 10 See Buethe, 2021 WL 1966202, at *7 (citing Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) 11 (“[T]he ALJ must provide sufficient reasoning that allows [for] review.”)). See also Vincent v. 12 Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1994) (while the ALJ need not discuss all evidence 13 presented to them, they must explain why “significant probative evidence has been rejected”). This 14 the ALJ did not do.7 15 As to the ultimate outcome of Plaintiff’s claim, the Court expresses no opinion as to the 16 level of persuasiveness that should be ascribed to Dr. Michiel’s opinion. Nor does the Court 17 express what Plaintiff’s RFC ultimately should be. These are for the ALJ to decide. Ford, 950 18 F.3d at 1154. However, because the ALJ cherry-picked facts and ignored probative evidence, 19 including medical opinion evidence, “the proper remedy is remand, where the ALJ may either (a) 20 reaffirm [their] decision after a more thorough explanation of why these opinions were unsupported 21 by and inconsistent with the relevant evidence, or (b) award benefits.” Buethe, 2021 WL 1966202, 22 at *7. 23 24 25 7 The error is not harmless. Errors are harmless when a reviewing court “can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.” Stout v. Comm’r, 26 Social Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). Here, the VE testified that the addition to Plaintiff’s RFC of a requirement of a reminder from a supervisor every 30 minutes to stay on task would preclude the identified jobs of 27 document preparer, final assembler, and table worker. (AR 63–64.) The Court therefore cannot “confidently conclude” that “no reasonable ALJ” considering Dr. Michiel’s opinion could have reached a different disability determination. 28 See Marsh, 792 F.3d at 1173 (ALJ’s failure to consider medical opinion, which described the plaintiff as “pretty much 1 2 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 3 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 4 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment 5 in favor of Plaintiff Kulwant Singh Sidhu against Defendant Martin O’Malley, Commissioner of 6 Social Security. 7 IT IS SO ORDERED. 8 9 Dated: May 23, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28