Thomas v. Kijakazi

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2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 CURTIS THOMAS, Case No. 21-cv-10007-HSG

8 Plaintiff,

ORDER GRANTING PLAINTIFF'S

9 v. MOTION FOR SUMMARY

JUDGMENT AND DENYING

10 MARTIN O’MALLEY, DEFENDANT'S CROSS-MOTION FOR

SUMMARY JUDGMENT

Defendant.

11

Re: Dkt. Nos. 23, 24

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13

Defendant Kilolo Kijakazi,1 the former acting Commissioner of the Social Security

14 Administration (“SSA”), acting in her official capacity, denied Plaintiff Curtis Thomas’s

15 application for Supplemental Security Income (“SSI”). Dkt. No. 1. Plaintiff seeks judicial review

16 of that decision. For the reasons set forth below, the Court GRANTS Plaintiff’s motion for

17 summary judgment, see Dkt. No. 23, DENIES Defendant’s cross-motion for summary judgment,

18 see Dkt. No. 24, and remands this matter to the SSA for further proceedings.

19 I. BACKGROUND

20 In May 2018, Plaintiff filed an application for SSI, alleging a disability onset date of

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January 1, 1965. AR 212–20.2 Plaintiff listed as impairments “learning disability,” depression,

22 difficulty sleeping, “substance abuse issue,” and paranoia. AR 71–72, 89. The Agency denied

23 Plaintiff’s application initially in July 2018, and on reconsideration in October 2018. AR 86–87,

24 102–03.

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1 Martin O’Malley is the current Commissioner of Social Security. He is substituted for his

predecessor, Dr. Kilolo Kijakazi, as Defendant in this action under Fed. R. Civ. P. 25(d).

27

2 Due to its size, the Administrative Record, filed as Dkt. No. 19, is broken into sixteen parts. The

1 Plaintiff appeared before an Administrative Law Judge (“ALJ”) in July 2020. AR 37–70.

2 The ALJ followed the five-step sequential evaluation process mandated for disability claims under

3 20 C.F.R. § 404.1520(a) and ultimately found that Plaintiff was not disabled. AR 17–36. The

4 ALJ accordingly denied Plaintiff’s request for benefits. Id. The Appeals Council denied

5 Plaintiff’s request for review in October 2021. AR 1–6.

6 Step One requires the ALJ to determine whether the claimant is working in “substantial

7 gainful activity,” defined as work done for pay or profit and involving significant mental or

8 physical activities. See 20 C.F.R. §§ 404.1520(b), 404.1572. At Step One, the ALJ found that

9 Plaintiff had not engaged in “substantial gainful activity” during the relevant period. AR 22.

10 Step Two directs the ALJ to determine whether the claimant has a severe impairment or

11 combination of impairments that significantly limit her ability to work. See 20 C.F.R.

12 § 404.1520(c). At Step Two, the ALJ found the following alleged impairments to be severe: mild

13 intellectual disorder; adjustment disorder with depressed mood; PTSD; alcohol use disorder; mild

14 retrolisthesis of the lumbar spine; gastroesophageal reflux disease (“GERD”) with esophagitis; and

15 obesity. AR 22. While the ALJ considered Plaintiff’s hernia in assessing his residential

16 functional capacity (“RFC”), the ALJ determined that the evidence did not establish that this

17 impairment “more than minimally” limited Plaintiff’s ability to perform basic work activities,

18 given that Plaintiff regularly denied any associated pain or problems from the hernia. Id.

19 At Step Three, the ALJ determines whether the claimant’s impairment, or combination of

20 impairments, medically “meets or equals” an impairment listed in 20 C.F.R., pt. 404, subpt. P,

21 Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. “That bureaucratic mouthful

22 means the ALJ must see if the claimant’s impairment matches the criteria for disabling conditions

23 listed in the regulations.” Petrini v. Colvin, No. 14–CV–01583–JD, 2015 WL 5071931, at *1

24 (N.D. Cal. Aug. 27, 2015), aff’d sub nom. Petrini v. Berryhill, 705 F. App’x 511 (9th Cir. 2017)

25 (citation omitted). At Step Three, the ALJ determined that Plaintiff did not have an impairment or

26 combination of impairments that met or medically equaled the required criteria. AR 23-25. The

27 ALJ also considered whether the “paragraph B” criteria were satisfied, and concluded that

1 in a broad area of functioning. Id.

2 At Step Four, if the claimant does not have a listed impairment, the ALJ assesses the

3 claimant’s RFC and ability to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv), (e), (f);

4 see also id. § 404.1545. In considering the claimant’s symptoms, the ALJ must first consider

5 whether there is an underlying medically determinable physical or mental impairment that could

6 reasonably be expected to produce the claimant’s pain or other symptoms. See id. § 404.1529;

7 Social Security Ruling 16-3p. The ALJ must consider all impairments, even those that are not

8 severe. 20 C.F.R. § 404.1545(a)(2). Once the underlying impairment has been shown, the ALJ

9 must then evaluate the intensity, persistence, and limiting effects of the claimant’s symptoms. See

10 id. § 404.1529.

11 Here, at Step Four, the ALJ determined that Plaintiff has the RFC to perform medium work

12 as defined in 20 C.F.R. § 416.967(c), “except that he must avoid concentrated use of hazardous

13 machinery and concentrated exposure to unprotected heights;” work is limited to “simple” as

14 defined in the Dictionary of Occupational Titles (“DOT”) at specific vocational preparation

15 (“SVP”)3 levels 1 and 2, “routine and repetitive tasks;” and “[h]e can work in a low stress job,

16 defined as requiring only occasional decision making and only occasional changes in the work

17 setting.” AR 25. In reaching the RFC determination, the ALJ found that Plaintiff’s medically

18 determinable impairments could reasonably be expected to cause his symptoms, that his

19 “statements concerning the intensity, persistence, and limiting effects of these symptoms are not

20 entirely consistent with the medical evidence and other evidence of record” for several reasons.

21 AR 26.

22 Lastly, at Step Five, the ALJ determines whether the claimant can adjust to other work

23 based on the claimant’s age, education, work experience, and RFC. 20 C.F.R.

24 § 404.1520(a)(4)(v). At Step Five, the ALJ concluded that, based on the testimony of the

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3 SVP is defined as “the amount of lapsed time required by a typical worker to learn the

techniques, acquire the information, and develop the facility needed for average performance in a

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specific job-worker situation.” DOT, Appendix C – Components of the Definition Trailer, 1991

1 vocational expert and considering Plaintiff’s age, education, work experience, and RFC, Plaintiff

2 is capable of successfully finding work that exists in “significant numbers in the national

3 economy.” AR 31. The ALJ thus concluded that Plaintiff is not disabled under the Act. Id.

4 II. LEGAL STANDARD

5 The Court has jurisdiction to review final decisions of the Commissioner. See 42 U.S.C.

6 § 405(g) (“The [district] court shall have power to enter, upon the pleadings and transcript of the

7 record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social

8 Security, with or without remanding the cause for a rehearing.”). The Court may disturb the

9 Commissioner’s decision to deny benefits only if the decision is not supported by substantial

10 evidence or is based on legal error. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). The

11 threshold for “substantial evidence” is not high: “It means—and means only—‘such relevant

12 evidence as a reasonable mind might accept as adequate to support a conclusion.’” Biestek v.

13 Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted). “The evidence ‘must be more than a

14 mere scintilla,’ but may be less than a preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110–11

15 (9th Cir. 2012) (citation omitted). “Where the evidence is susceptible to more than one rational

16 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

17 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citation omitted).

18 The Court must consider the administrative record as a whole, weighing both the evidence

19 that supports and the evidence that detracts from the ALJ’s conclusion. McAllister v. Sullivan,

20 888 F.2d 599, 602 (9th Cir. 1989). The ALJ is responsible for making determinations of

21 credibility and for resolving evidentiary ambiguities, including conflicting medical testimony.

22 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Additionally, the Court “may not

23 reverse an ALJ’s decision on account of an error that is harmless. [T]he burden of showing that an

24 error is harmful normally falls upon the party attacking the agency’s determination.” Molina, 674

25 F.3d at 1111 (internal quotation marks and citations omitted).

26 III. DISCUSSION

27 Plaintiff argues that the ALJ harmfully erred in denying his claim for disability benefits.

1 impairment at Step Two. Dkt. No. 23 at 11. Second, Plaintiff asserts that the ALJ’s “paragraph

2 B” criteria findings are not supported by substantial evidence. Id. at 11–15. Third, Plaintiff

3 argues that the ALJ erred in weighing four medical opinions in the record. Id. at 15–20.

4 Although the Court recognizes and applies the controlling deferential standard of review

5 and finds that the ALJ did not err in the Step Two analysis, it finds that the ALJ erred with respect

6 to the analysis of two of the medical opinions highlighted by Plaintiff. The Court thus will

7 remand for further proceedings consistent with this order.

8 A. Step Two

9 1. Legal Standard

10 At Step Two of the five-step sequential analysis, the ALJ must assess the medical severity

11 of a claimant’s impairments. 20 C.F.R. § 404.1520(a)(4)(ii); Webb v. Barnhart, 433 F.3d 683, 686

12 (9th Cir. 2005). “[T]he step-two inquiry is a de minimis screening device to dispose of groundless

13 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). A severe impairment “must be

14 established by objective medical evidence from an acceptable medical source.” 20 C.F.R.

15 § 404.1521. The claimant bears the burden of showing that she has a medically severe impairment

16 or combination of impairments. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (the

17 burden of proof is on the claimant as to Steps One to Four of the sequential analysis).

18 An impairment or combination of impairments is considered “severe” if it “significantly

19 limits [a claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R.

20 § 404.1520(c). “Basic work activities are ‘abilities and aptitudes necessary to do most jobs,’”

21 Smolen, 80 F.3d at 1290, including “walking, standing, sitting, lifting, pushing, pulling, reaching,

22 carrying or handling; seeing, hearing, and speaking; understanding, carrying out, and remembering

23 simple instructions; use of judgement, responding appropriately to supervision, coworkers, and

24 usual work situations; and dealing with changes in a routine work setting,” SSR 85-28, 1985 WL

25 56856 at *3. “An impairment or combination of impairments can be found ‘not severe’ only if the

26 evidence establishes a slight abnormality that has ‘no more than a minimal effect on an

27 individual[’]s ability to work.’” Smolen, 80 F.3d at 1290 (citations omitted). If the claimant has a

1 that has lasted or is expected to last for at least 12 continuous months, the claimant is disabled. 20

2 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii).

3 2. Analysis

4 Here, the ALJ stated that “While I have considered the hernia in assessing [Plaintiff’s

5 RFC], the evidence does not establish that this impairment more than minimally limits [Plaintiff’s]

6 ability to perform basic work activities.” AR 22. This determination was supported by substantial

7 evidence, and the record does not compel a conclusion that Plaintiff’s hernia qualified as a severe

8 impairment. In September 2018, Dr. Diaz ordered diagnostic evaluations for the hernia, including

9 an ultrasound, and referred Plaintiff to surgery. AR 596–97. At a follow-up appointment,

10 Plaintiff reported that the hernia was not becoming larger and does not cause him pain. AR 580.

11 The treating physician noted that Plaintiff’s hernia was not tender, did not appear to be interfering

12 significantly with his daily activities, and that he did not have an urgent need for hernia repair, but

13 that he could be a candidate for elective hernia surgery “should he become symptomatic.” AR

14 583. Plaintiff agreed to continue with this observational approach. Id. Through 2019 and 2020,

15 Plaintiff continued to report no problems with his hernia. See, e.g., AR 967 (June 2019); 961

16 (August 2019); 960 (January 2020).

17 “The mere existence of an impairment is insufficient proof of a disability.” Matthews v.

18 Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (citation omitted). Though the record is clear that

19 Plaintiff does have a hernia, substantial evidence supported the ALJ’s finding that this impairment

20 is not severe for purposes of the Step Two analysis.4 See, e.g., Verduzco v. Apfel, 188 F.3d 1087,

21 1089 (9th Cir. 1999) (“Although the appellant clearly does suffer from diabetes, high blood

22 pressure, and arthritis, there is no evidence to support his claim that those impairments are

23 ‘severe.’”). Despite finding that Plaintiff’s hernia no more than minimally limited his ability to

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4 Plaintiff’s assertions that all of the doctors in this case found that his hernia was a severe

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impairment, Dkt. No. 23 at 11, Dkt. No. 25 at 2, inaccurately characterize the record. The hernia

is listed as a “severe” impairment in two places on the Agency’s forms denying Plaintiff’s SSI

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application. See AR 78, 93. The State Agency consultants went on to explain that Plaintiff

reported experiencing no pain associated with his hernia. See AR 81, 97 (Plaintiff makes no

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complaints about his hernia and reported he can probably lift up to 60 pounds). The rest of

1 perform basic work activities, the ALJ still considered this impairment in formulating Plaintiff’s

2 RFC. See AR 22; see also 20 C.F.R. § 404.1545(a)(1) (“We will assess your residual functional

3 capacity based on all the relevant evidence in your case record.”); id. § 404.1546(c) (the ALJ “is

4 responsible for assessing your residual functional capacity”). Accordingly, because the ALJ’s

5 interpretation of the evidence related to Plaintiff’s hernia was rational, Thomas, 278 F.3d at 954,

6 the Court finds that there was no error in the Step Two analysis.

7 3. Harmless Error

8 Even if the ALJ erred by failing to conclude that Plaintiff’s hernia was a severe

9 impairment, any such error was harmless. A claimant is prejudiced at Step Two by an ALJ’s

10 omission of an impairment only where that step is not resolved in the claimant’s favor. See, e.g.,

11 Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (“Here, the ALJ did not find that Burch’s

12 obesity was a ‘severe’ impairment . . . Assuming without deciding that this omission constituted

13 legal error, it could only have prejudiced Burch in step three (listing impairment determination) or

14 step five (RFC) because the other steps, including this one, were resolved in her favor.”); Hickman

15 v. Comm’r of Soc. Sec. Admin., 399 F. App’x 300, 302 (9th Cir. 2010) (“Any error in the ALJ’s

16 failure to include a reading disorder as one of Hickman’s severe impairments at step two of the

17 analysis is harmless. The ALJ found Hickman suffered from other severe impairments and thus,

18 step two was already resolved in Hickman’s favor.”). Furthermore, an ALJ’s failure to include an

19 impairment in the Step Two analysis is harmless if the ALJ considers the functional limitations

20 that flow from that impairment at subsequent steps. See Lewis v. Astrue, 498 F.3d 909, 911 (9th

21 Cir. 2007) (ALJ’s failure to list plaintiff’s bursitis as a severe impairment at Step Two was

22 harmless where the ALJ considered limitations caused by the condition at Step Four).

23 Here, the ALJ determined that Plaintiff had the following severe impairments: mild

24 intellectual disorder; adjustment disorder with depressed mood; PTSD; alcohol use disorder; mild

25 retrolisthesis of the lumbar spine; GERD with esophagitis; and obesity. AR 22. The ALJ then

26 proceeded to the Step Three analysis. See AR 23. Because Plaintiff’s claims were not screened

27 out at Step Two, he was not prejudiced by any error in the Step Two analysis. At Step Four, the

1 accepted as consistent with the objective medical evidence and other evidence.” AR 25; see, e.g.,

2 Sara Ann W. v. Comm’r of Soc. Sec., Case No. 2:17-CV-00277-RHW, 2018 WL 4088771, at *5

3 (E.D. Wash. Aug. 27, 2018) (“the ALJ specifically noted that she considered all symptoms in

4 assessing the [RFC] . . . Accordingly, the Court finds the ALJ did not err in the step two analysis,

5 and if any error did occur it was harmless.”) (emphasis in original). Accordingly, the Court

6 concludes that the ALJ did not commit harmful error in the Step Two analysis.

7 B. Evaluation of Medical Opinions

8 1. Legal Standard

9 “There is no longer a hierarchy of medical opinions that determines how the opinions are

10 weighed.” Kitchen v. Kijakazi, 82 F.4th 732, 740 (9th Cir. 2023) (citing Woods v. Kijakazi, 32

11 F.4th 785, 792 (9th Cir. 2022)). “[U]nder the new regulations, an ALJ cannot reject an examining

12 or treating doctor’s opinion as unsupported or inconsistent without providing an explanation

13 supported by substantial evidence.” Woods, 32 F.4th at 792. In reviewing medical opinions, an

14 ALJ must “articulate . . . how persuasive” it finds “all of the medical opinions” based on several

15 factors. 20 C.F.R. § 404.1520c(b). The two most important factors are supportability and

16 consistency. Id. Supportability is “the extent to which a medical source supports the medical

17 opinion by explaining the ‘relevant . . . objective medical evidence.’” Woods, 32 F.4th at 791–92

18 (quoting 20 C.F.R. § 404.1520c(c)(1)). Consistency is “the extent to which a medical opinion is

19 ‘consistent . . . with the evidence from other medical sources and nonmedical sources in the

20 claim.’” Woods, 32 F.4th at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). An ALJ may, but is not

21 required to, explain how other factors were considered, including the source’s relationship with

22 the claimant, the length and purpose of the treatment relationship, the frequency of examinations,

23 and the source’s specialization. 20 C.F.R. § 404.1520c(b)(2), (c).

24 2. State Agency Medical Consultants

25 Plaintiff contends that the ALJ erred by finding persuasive the medical opinions of the

26 State Agency medical consultants as to his physical impairments. See Dkt. No. 23 at 15–16. The

27 Court finds no error with respect to the ALJ’s treatment of these opinions.

1 he made no complaints regarding his hernia and reported that he can “probably” lift up to 60

2 pounds. AR 81, 96–97. The ALJ determined that the consultants’ opinions were persuasive

3 because they were (1) supported by unremarkable examination findings by examining physician

4 Eugene McMillan, M.D., during a June 2018 consultive examination and (2) consistent with

5 subsequent treatment records with Plaintiff’s primary care physician, Alejandro Diaz, M.D. AR

6 28; see also AR 344–47 (Dr. McMillan’s internal medicine evaluation). In support of this

7 assessment, the ALJ observed that Plaintiff’s physical examinations in treatment consistently

8 showed a normal gait, strength, and neurological findings, and he consistently reported no hernia

9 pain. AR 28. The ALJ further noted that, in contrast to Plaintiff’s hearing testimony, the written

10 record showed that he reported walking an hour daily for exercise, and records in 2019 and 2020

11 showed that he reported no complaints regarding his back. Id. At the hearing, Plaintiff testified

12 that his back pain is limited to the morning when he gets up, and it does not persist throughout the

13 day. Id. And he reported to Dr. McMillan that he believed he could lift 60 pounds. Id. However,

14 the ALJ determined that the weight of the evidence did not support the postural limitations opined

15 by Dr. McMillan, given that Dr. McMillan’s examination findings did not show limitations in

16 range of motion or strength and did not show positive neurological findings.5 Id. The ALJ then

17 concluded that the consultants’ assessment of ability to perform medium work without postural

18 limitations was more consistent with the available examination findings and the evidence as a

19 whole. AR 29.

20 The Court concludes that the ALJ properly considered the supportability and consistency

21 factors when assessing the persuasiveness of the State Agency consultants’ opinions, and that the

22 ALJ’s explanation was supported by substantial evidence. See Woods, 32 F.4th at 792. The

23 record includes observations from treating providers, as well as Dr. McMillan, of normal gait and

24 strength. See AR 346, 481, 511–12, 521. As discussed above, Plaintiff reported to the treating

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5 Plaintiff contends that the ALJ further erred by failing to offer any reasons for rejecting Dr.

McMillan’s postural limitations. See Dkt. No. 23 at 16. To the contrary, in weighing the

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persuasiveness of Dr. McMillan’s assessment, the ALJ directly found that the weight of the

1 providers and Dr. McMillan that his hernia symptoms improved to the point where surgery was

2 deemed elective. See AR 344, 583, 960–61, 967. The record does contain some indications

3 toward the beginning of the relevant time period that Plaintiff reported back pain. See AR 595–96

4 (September 2018: Plaintiff reported having back pain localized to his lower back, felt it was worse

5 in the morning, and indicated that his weight gain might have added to his pain; Dr. Diaz opined

6 that it was “mechanical” back pain, likely worsened by staying outdoors most of the time, but “no

7 red flags”); AR 586–87 (October 2018: Plaintiff reported still having localized lower back pain,

8 worse in the mornings, and had an upcoming appointment with a surgeon). An x-ray of Plaintiff’s

9 lumbar spine ordered by Dr. Diaz revealed mild retrolisthesis of L4 on L5 with extension, but no

10 fracture of the lumbar spine. AR 591. However, Plaintiff’s back pain appeared to improve with

11 better sleeping arrangements over the course of the next few months, see AR 554, 561–62, 567,

12 968, to the point where Plaintiff had no complaints of pain. See, e.g., AR 961 (no complaints of

13 back pain in August 2019); 960 (no complaints of back pain in January 2020). The ALJ

14 appropriately weighed this medical evidence against the postural limitations opined by Dr.

15 McMillan, and in light of the examining physician’s other findings of normal range of motion and

16 normal neurological findings. AR 28; see also AR 347.

17 Plaintiff speculates that Dr. McMillan’s RFC finding incorporating postural limitations

18 must have been premised on the hernia, given that the remainder of the physical examination was

19 unremarkable, and he surmises that medical records post-dating the consultants’ opinions might

20 have altered their conclusions. See Dkt. No. 23 at 15–16, 18. To the extent Plaintiff is advocating

21 for an alternative interpretation of the evidence in the record, the Court declines to second-guess

22 the ALJ’s reasonable interpretation, even if such evidence could also support inferences more

23 favorable to Plaintiff. Molina, 674 F.3d at 1110; see also Batson v. Comm’r of Soc. Sec. Admin.,

24 359 F.3d 1190, 1198 (9th Cir. 2004) (“When the evidence before the ALJ is subject to more than

25 one rational interpretation, [the Court] must defer to the ALJ’s conclusion.”) (citation omitted).

26 Having considered the ALJ’s explanations for why she found the consultants’ assessments

27 persuasive, as well as the record as a whole, the Court concludes that the ALJ’s findings are

1 Accordingly, the Court finds that the ALJ properly considered the persuasiveness of the

2 State Agency consultants’ opinions and did not err on this ground.

3 3. Dr. Diaz

4 Plaintiff also contends that the ALJ erred in finding unpersuasive Dr. Diaz’s medical

5 opinion as to his physical impairments. See Dkt. No. 23 at 16-18. The Court finds that the ALJ’s

6 weighing of Dr. Diaz’s opinion was sufficiently articulated.

7 Dr. Diaz’s medical evaluation, completed in June 2019, consists of a three-page checkbox

8 form. See AR 371–73. The ALJ found that Dr. Diaz’s assessment for “essentially” sedentary

9 work was “unsupported by accompanying treatment records, which [did] not show positive

10 clinical findings and indicate[d] that [Plaintiff] reported having no back complaints within a few

11 months of establishing treatment.” AR 29. The ALJ further found Dr. Diaz’s opinion inconsistent

12 with Dr. McMillan’s examination findings and with treatment records showing that Plaintiff

13 denied hernia pain and was not a candidate for hernia surgery. Id.

14 Substantial evidence supports the ALJ’s finding that Dr. Diaz’s medical opinion regarding

15 Plaintiff’s physical impairments was not persuasive. Dr. Diaz’s treatment notes post-dating the

16 opinion at issue cut against the severe limitations set forth in his evaluation. See AR 554, 561–62,

17 567, 583, 960–61, 967–68 (treatment notes indicating Plaintiff reported no back pain or hernia

18 pain, such that hernia surgery would be considered elective); see also John H. v. Kijakazi, Case

19 No. 22-cv-02864-DMR, 2023 WL 6232561, at *5 (N.D. Cal. Sept. 25, 2023) (finding substantial

20 evidence supported the ALJ’s determination that medical opinions were not persuasive where,

21 inter alia, treatment notes post-dating the evaluations documented normal mental status

22 examinations). An ALJ may discount a doctor’s opinions that are inconsistent with or

23 unsupported by the doctor’s own clinical findings. Tommasetti v. Astrue, 533 F.3d 1035, 1041

24 (9th Cir. 2008); see, e.g., Kitchen, 82 F.4th at 740 (upholding ALJ’s determination that a medical

25 opinion was unpersuasive where the doctor’s assessment of severe limitations was inconsistent

26 with the medical record and the doctor’s own unremarkable mental status examinations). And the

27 Ninth Circuit “ha[s] accepted the discounting of a medical opinion set forth in a checkbox form

1 1155 (9th Cir. 2020) (explaining that an ALJ “may permissibly reject check-off reports that do not

2 contain any explanation of the bases of their conclusions”) (citation omitted)).

3 Plaintiff further asserts that the ALJ erroneously failed to recognize that Dr. Diaz’s opinion

4 was supported by Plaintiff’s testimony. See Dkt. No. 23 at 16. However, in interpreting the

5 evidence in the record, ALJs are not required to address every piece of evidence, Howard ex rel.

6 Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003), nor must they “perform a line-by-line

7 exegesis of the claimant’s testimony” or “draft dissertations when denying benefits.” Lambert v.

8 Saul, 980 F.3d 1266, 1277 (9th Cir. 2020).

9 Accordingly, the Court concludes that the ALJ did not err in weighing Dr. Diaz’s medical

10 opinion.

11 4. Dr. Apostle

12 Plaintiff next asserts that the ALJ improperly found “generally unpersuasive” the opinion

13 of consultive examiner Demetry Apostle, Ph.D., as to his mental impairments. Dkt. No. 23 at 18–

14 19; see also AR 603–24 (Dr. Apostle’s psychological evaluation). The Court agrees.

15 The ALJ provided the following analysis of Dr. Apostle’s medical opinion:

16 With regard to the claimant’s mental impairments, I find the opinion

of Dr. Apostle generally unpersuasive, as it does not provide a

17 specific functional assessment and draws a general conclusion about

the claimant’s ability to sustain a regular job, which is an issue of

18 disability reserved to the Commissioner. Exhibit 9F/18. While I have

carefully considered the claimant’s psychological testing in finding

19 him limited to simple and low stress work as articulated in Finding 4,

I note that many of the procedures administered were self-reported

20 inventories, followed by considerable speculation in Dr. Apostle’s

analysis. Exhibit 9F/6. I note, for example, that despite the absence of

21 observed or reported internal preoccupation during the evaluation, Dr.

Apostle reported that the claimant appeared to be experiencing a brief

22 psychotic episode characterized by periods of disorganized and

bizarre thinking that was “[p]ossibly a phase in a more extended

23 schizophrenic course.” Exhibit 9F/15. The remaining record contains

scant evidentiary support for such inference.

24

25 AR 29.6

26

6 To the extent the ALJ in any way discounted Dr. Apostle’s psychological testing because the

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procedures were premised on “self-reported inventories,” Ninth Circuit authority makes clear that

1 The ALJ erred as a threshold matter in failing to discuss the supportability and consistency

2 of Dr. Apostle’s medical opinion. The Agency “must ‘articulate . . . how persuasive’ it finds ‘all

3 of the medical opinions’ from each doctor or other source, 20 C.F.R. § 404.1520c(b), and ‘explain

4 how [it] considered the supportability and consistency factors’ in reaching these findings, id.

5 § 404.1520c(b)(2).” Woods, 32 F.4th at 792. The ALJ describes Dr. Apostle’s medical opinion as

6 entailing “considerable speculation,” but does not identify which aspects of the medical opinion

7 are based on speculation, or explain why they make the ultimate opinion unreliable. See AR 29.

8 Highlighting a single observation in Dr. Apostle’s lengthy evaluation, the ALJ summarily

9 concludes that “[t]he remaining record contains scant evidentiary support for such inference.” Id.

10 However, there is no citation to where in the record this “scant evidentiary support” exists, a

11 discussion of what this evidence is, or any explanation as to why it does not support Dr. Apostle’s

12 opinion.

13 Moreover, the ALJ’s conclusion that there is minimal evidentiary support for Dr. Apostle’s

14 findings about the extent of Plaintiff’s mental health impairments is unsupported by substantial

15 evidence, and belied by Dr. Apostle’s report itself. Contrary to the ALJ’s characterization, Dr.

16 Apostle did not merely assert speculative work-related limitations and arrive at “a general

17 conclusion about [Plaintiff’s] ability to sustain a regular job.” See AR 29. Rather, Dr. Apostle’s

18 findings about Plaintiff’s functional impairments followed an extensive discussion of his mental

19 health status, the resulting limitations, and the effect that these limitations would have on his

20 ability to work. See AR 609–20. The ALJ also reasoned that Dr. Apostle’s evaluation was

21 unpersuasive because Dr. Apostle did not provide a specific functional assessment. AR 29.

22 However, as Plaintiff notes, Dkt. No. 23 at 18, Dr. Apostle did provide a functional assessment,

23 opining that Plaintiff would have marked impairments in all four “paragraph B” criteria. See AR

24 624. Defendant contends that this functional assessment is inadequate because “the RFC requires

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based on self-reports does not apply in the same manner to opinions regarding mental illness.”);

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Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (“when an opinion is not more heavily

based on a patient’s self-reports than on clinical observations, there is no evidentiary basis for

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rejecting the opinion.”) (citation omitted). On remand, the ALJ should reconsider the self-reported

1 specific functional limitations; it does not frame Plaintiff’s limitations on a range (e.g., none, mild,

2 moderate, marked, extreme).” Dkt. No. 24 at 14 (emphasis omitted). The Court is not persuaded.

3 “It is clear that it is the responsibility of the ALJ, not the claimant’s physician, to determine

4 residual functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (citing 20

5 C.F.R. § 404.1545); see also Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (“The ALJ is

6 responsible for determining credibility, resolving conflicts in medical testimony, and for resolving

7 ambiguities.”) (citation omitted). That Dr. Apostle did not frame functional limitations in the

8 RFC’s precise terms, when formulation of the RFC was the responsibility of the ALJ, does not

9 render the doctor’s resulting medical opinion unpersuasive.

10 Accordingly, the Court finds that the ALJ’s analysis of Dr. Apostle’s medical opinion is

11 not supported by substantial evidence. See Woods, 32 F.4th at 792; see also 42 U.S.C. § 405(g).

12 On remand, if the ALJ still finds Dr. Apostle’s opinion unpersuasive, the ALJ must support that

13 conclusion consistent with the Ninth Circuit’s requirements.

14 5. Dr. Kollath

15 Finally, Plaintiff argues that the ALJ improperly found “generally persuasive” the opinion

16 of consultive examiner Ute Kollath, Ph.D., as to his mental impairments. Dkt. No. 23 at 19–20;

17 see also AR 338–42 (Dr. Kollath’s psychological evaluation). As with the ALJ’s treatment of Dr.

18 Apostle’s opinion, the Court agrees with this claim of error.

19 The ALJ’s analysis of Dr. Kollath’s opinion is as follows:

20 I find the opinion of Dr. Kollath generally persuasive, as it is

supported by the claimant’s testing, mental status examination, and

21 reported activities at the time of the examination and is consistent

with mental status findings in treatment. Exhibit 1F; see Exhibit

22 7F/118 (and passim). While the claimant testified that he did not

return for mental health treatment after an initial session in September

23 2018 due to anxiety talking with others, the claimant has been able to

seek treatment for various other conditions and was able to provide a

24 detailed and candid personal history during the September 2019

evaluation. Exhibits 7F; 9F. Despite his allegations of disabling

25 mental impairment, he has been able to seek and perform work at

SGA levels. Neither his testimony nor the written record indicates that

26 he stopped working because he was mentally incapable of performing

the work. Exhibit 1F/1; Hearing Testimony. The claimant remains

27 capable of navigating public transportation, attending church

denied significant concern about his current use. Exhibits 7F/117;

1 12F/1, 8, 9.

2 AR 29.

3 However, the ALJ’s factual recitation of Plaintiff’s reports of his alcohol use or his

4 capacity to find and sustain work is inconsistent with the record fairly read as a whole. First,

5 although Plaintiff briefly denied significant concerns about his alcohol use in 2018, see AR 349,

6 587, the ALJ ignores his consistent reports in treatment notes thereafter of long-term alcohol use

7 causing “blackouts” and the fact that he was ultimately treated with pain medication for alcohol

8 cessation assistance. See, e.g., AR 377, 379, 554, 561–62, 576, 580, 968; see also AR 87, 103

9 (disability determinations noting a secondary diagnosis of “Substance Addiction Disorders

10 (Alcohol)”); AR 344 (Dr. McMillan noting Plaintiff represented a history of having alcohol-

11 related memory blackouts); AR 617 (Dr. Apostle noting that “recurrent periods of alcohol abuse

12 appear to be a major problem for [Plaintiff]. Characteristically moody and impulsive, his behavior

13 becomes intensified when he is drinking heavily.”). Plaintiff’s alcohol abuse was so prevalent that

14 at Step Two, the ALJ had found it to be a severe impairment. See AR 22.

15 Second, citing no evidence, the ALJ concludes that “[d]espite his allegations of disabling

16 mental impairment, he has been able to seek and perform work at SGA levels.” AR 29. This

17 finding ignores that Plaintiff was laid off from his last job because he did not come to work for

18 three days and blacked out, see AR 338, or Plaintiff’s reports that he has a hard time keeping a job

19 due to his memory issues, see, e.g., AR 595. While ALJs need not exhaustively recite the entire

20 record, Howard, 341 F.3d at 1012, their factual characterizations must be fair considering the

21 longitudinal record as a whole. See, e.g., Anthony M. W. v. Comm’r of Soc. Sec., Case No. 21-CV-

22 08018-RMI, 2023 WL 2352238, at *6 (N.D. Cal. Mar. 3, 2023) (“The ALJ’s reliance on a single

23 report by the Plaintiff that his ‘shoulder is functional and comfortable’ ignores over a decade of

24 prior complaints of shoulder pain and associated limitations. Even more significantly, the ALJ

25 ignored evidence of both pain and limitations that followed Plaintiff’s statement.”) (citations

26 omitted) (emphasis in original); Lilita H. v. Kijakazi, Case No. 21-CV-04063-JSC, 2022 WL

27 4225395, at *5 (N.D. Cal. Sept. 13, 2022) (finding substantial evidence did not support the ALJ’s

1 by a consultive examiner unsupported by the record).

2 Accordingly, the Court finds that the ALJ’s analysis of Dr. Kollath’s medical opinion is

3 not supported by substantial evidence. See Woods, 32 F.4th at 792; see also 42 U.S.C. § 405(g).

4 If the ALJ still determines that Dr. Kollath’s opinion is “generally persuasive” on remand, the ALJ

5 must provide conclusions supported by substantial evidence in light of the medical record fairly

6 read as a whole.

7 IV. RELIEF

8 In sum, the Court finds that the ALJ’s decision at Step Two was supported by substantial

9 evidence, but finds that the ALJ erred in the analysis of two medical opinions as to Plaintiff’s

10 mental impairments. “When the ALJ denies benefits and the court finds error, the court ordinarily

11 must remand to the agency for further proceedings before directing an award of benefits.” Leon v.

12 Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) (citation omitted). A court may, in its discretion,

13 grant a direct award of benefits when certain conditions are met. Id. To order that rare remedy,

14 the Court must conclude that (1) “the record has been fully developed and further administrative

15 proceedings would serve no useful purpose;” (2) “the ALJ has failed to provide legally sufficient

16 reasons for rejecting evidence;” and (3) if the evidence “were credited as true, the ALJ would be

17 required to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th

18 Cir. 2014) (footnote and citations omitted).

19 Here, although the Court finds that the ALJ erred in the assessment of two of the medical

20 opinions in this case, it cannot conclude that “further administrative proceedings would serve no

21 useful purpose.” Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Garrison,

22 759 F.3d at 1020). The record “raises crucial questions” about the extent to which Plaintiff’s

23 mental impairments render him disabled. Id. For example, Dr. Apostle opined that Plaintiff was

24 severely impaired as to attention, concentration, and executive functioning. See AR 609. If the

25 ALJ credits Dr. Apostle’s medical opinion upon remand, that determination could bear on the

26 ALJ’s ultimate disability finding. Accordingly, the Court remands to allow for proper

27 consideration of the evidence of record and for any additional investigation. Dominguez v. Colvin,

1 Commissioner of Social Security, with or without remanding the case for a rehearing, but the

2 || proper course, except in rare circumstances, is to remand to the agency for additional investigation

3 or explanation.”) (internal quotation marks and citations omitted).

4 Because the case is being remanded, the Court need not address Plaintiffs claim as to

5 || whether substantial evidence supported the ALJ’s finding that he did not meet the “paragraph B”

6 || criteria. See Dkt. No. 23 at 11-15. It is appropriate for the ALJ to address this issue on remand.

7 WV. CONCLUSION

8 The Court GRANTS Plaintiff's motion for summary judgment, Dkt. No. 23, and DENIES

9 || Defendant’s cross-motion for summary judgment, Dkt. No. 24. The Court REMANDS this case

10 || tothe SSA for further proceedings on an open record consistent with this order. The Clerk is

11 directed to enter judgment in favor of Plaintiff and close the case.

12 IT IS SO ORDERED.

13 Dated: 3/31/2024

14

15 7 Mavpureed Adl_}

HAYWOOD S. GILLIAM, JR.

= 16 United States District Judge

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