“[w]here 21 evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion 22 which must be upheld and in reaching his findings, the ALJ is entitled to draw inferences 23 logically flowing from the evidence”
How later courts described this case
- “[w]here 21 evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion 22 which must be upheld and in reaching his findings, the ALJ is entitled to draw inferences 23 logically flowing from the evidence”
- “The grounds upon 5 which an administrative order must be judged are those upon which the record discloses 6 that its action was based.”
- The ALJ must develop the record to demonstrate how the daily activities are 6 inconsistent with the physician's opinion
- “[a] 13 decision of the ALJ will not be reversed for errors that are harmless”
Written by the judges who cited it.
The opinion
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9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
11
12 DEBORAH K., Case No.: 3:20-cv-02065-GPC-AHG
13 Plaintiff, REPORT AND RECOMMENDATION
REGARDING JOINT MOTION FOR
14 v.
JUDICIAL REVIEW
15 KILOLO KIJAKAZI, Commissioner of
Social Security,1 [ECF No. 15]
16
Defendant.
17
18
19 This matter comes before the Court for a Report and Recommendation (“R&R”) on
20 the parties’ Joint Motion for Judicial Review. ECF No. 15. Plaintiff Deborah K.
21 (“Plaintiff”) appeals the final decision of the Commissioner of Social Security denying her
22 application for disability benefits and supplemental income payments. ECF No. 1 at ¶¶ 1,
23 6, 9, 10, 11. Plaintiff brings her appeal pursuant to 42 U.S.C. § 405(g). Id. at ¶ 1.
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1 Kilolo Kijakazi became the Acting Commissioner of the Social Security Administration
27 on July 9, 2021. Although Plaintiff originally brought this action against Former
Commissioner Andrew Saul, this case may properly proceed against Kilolo Kijakazi
28
1 After a thorough review of the parties’ submissions, the administrative record, and
2 applicable law, the Court RECOMMENDS that the District Judge AFFIRM the
3 Commissioner’s denial of disability benefits.
4 I. PROCEDURAL BACKGROUND
5 Plaintiff was born in 1965, making her an individual “closely approaching advanced
6 age” on her alleged disability onset date. ECF No. 9, Certified Administrative Record
7 (“AR”) 36. Her past relevant work was as a purchasing agent for a dietary supplemental
8 manufacturer, assistant HOA community management, accounts receivable sales
9 representative, and nursery retail clerk. AR 268.
10 On March 21, 2018, Plaintiff filed an application for Social Security Disability
11 (“SSD”) benefits under Title II of the Social Security Act, alleging disability beginning on
12 May 10, 2017. See AR 259–60. Plaintiff’s application was initially denied on May 18,
13 2018. AR 174–77. On July 6, 2018, Plaintiff requested reconsideration of her SSD claim.
14 AR 182. Plaintiff then filed an application for Supplemental Security Income benefits
15 (“SSI”) under Title XVI of the Social Security Act on September 4, 2018. AR 280–296.
16 Plaintiff’s claims were denied at the reconsideration level on October 2, 2018. AR 183–
17 187. Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”) and
18 a hearing was held on October 9, 2019. AR 100–43, 188–90.
19 On November 13, 2019, the ALJ issued an unfavorable decision, finding Plaintiff
20 was not disabled and denying both SSD and SSI benefits. AR 20–43. Plaintiff filed a
21 request for review, but the Appeals Council denied review on August 20, 2020 (AR 6–13,
22 256–58), making the ALJ’s opinion the final decision of the Commissioner. See 42 U.S.C.
23 § 405(h).
24 Plaintiff filed this action on October 20, 2020, against the Commissioner of Social
25 Security (“Defendant” or “Commissioner”), seeking judicial review of the denial of her
26 applications for SSD and SSI benefits. ECF No. 1. Defendant filed the Administrative
27 Record on May 25, 2021. ECF No. 9. Pursuant to the Court’s briefing schedule (see ECF
28 Nos. 10, 14), the parties timely filed their Joint Motion for Judicial Review of Final
1 Decision of the Commissioner (“Joint Motion for Judicial Review”) on November 2, 2021.
2 ECF No. 15.
3 II. SUMMARY OF ALJ’S FINDINGS
4 A. The Five-Step Evaluation Process
5 The ALJ follows a five-step sequential evaluation process in assessing whether a
6 claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094,
7 1098–99 (9th Cir. 1999). In the first step, the Commissioner must determine whether the
8 claimant is currently engaged in substantial gainful activity; if so, the claimant is not
9 disabled and the claim is denied. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir.
10 2006).
11 If the claimant is not currently engaged in substantial gainful activity, the second
12 step requires the ALJ to determine whether the claimant has a “severe” impairment or
13 combination of impairments significantly limiting her ability to do basic work activities,
14 and which has lasted or is expected to last for a continuous period of at least 12 months; if
15 not, a finding of nondisability is made and the claim is denied. Id.; see also 20 C.F.R.
16 § 404.1509 (setting forth the 12-month duration requirement). If the claimant has a
17 “severe” impairment or combination of impairments, the third step requires the ALJ to
18 determine whether the impairment or combination of impairments meets or equals an
19 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart
20 P, appendix 1; if so, disability is conclusively presumed and benefits are awarded.
21 Lounsberry, 468 F.3d at 1114.
22 If the claimant’s impairment or combination of impairments does not meet or equal
23 an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation
24 process. The fourth step requires the ALJ to determine whether the claimant has sufficient
25 residual functional capacity (“RFC”) to perform her past work. Id. Therefore, the ALJ must
26 determine the claimant’s RFC before moving to step four.
27 An RFC is “an assessment of an individual’s ability to do sustained work-related
28 physical and mental activities in a work setting on a regular and continuing basis.” Soc.
1 Sec. Ruling (“SSR”) 96-9p, 1996 WL 374184, at *1 (S.S.A. 1996). It reflects the most a
2 claimant can do despite his limitations. 20 C.F.R. § 404.1545(a)(1); Smolen v. Chater, 80
3 F.3d 1273, 1291 (9th Cir. 1996). An RFC assessment must include an individual’s
4 functional limitations or restrictions as a result of all of his impairments – even those that
5 are not severe (see 20 C.F.R. § 404.1545(a)(1)-(2), (e)) – and must assess her “work-related
6 abilities on a function-by-function basis.” SSR 96-9p, 1996 WL 374184, at *1; see also
7 Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“an RFC that
8 fails to take into account a claimant’s limitations is defective”). An ALJ errs when he
9 provides an incomplete RFC that ignores or discounts “significant and probative evidence”
10 favorable to a claimant’s position. Hill v. Astrue, 698 F.3d 1153, 1161–62 (9th Cir. 2012)
11 (further noting that the error is not harmless when an ALJ fails to discuss significant and
12 probative evidence favorable to a claimant’s position because when the RFC is incomplete,
13 the hypothetical question presented to the vocational expert is incomplete and, therefore,
14 the ALJ’s reliance on the vocational expert’s answers is improper).
15 An RFC assessment is ultimately an administrative finding reserved to the ALJ.
16 20 C.F.R. § 404.1527(d)(2). However, an RFC determination must be based on all of the
17 relevant evidence, including the diagnoses, treatment, observations, and opinions of
18 medical sources, such as treating and examining physicians. 20 C.F.R. § 404.1545. A court
19 must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal
20 standards and substantial evidence in the record as a whole supports the decision. See
21 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). At step four of the disability
22 analysis, if the ALJ determines a claimant has sufficient RFC to perform past relevant
23 work, the claimant is not disabled and the claim is denied. Drouin v. Sullivan, 966 F.2d
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2 “SSRs do not have the force of law. However, because they represent the Commissioner’s
27 interpretation of the agency’s regulations, we give them some deference. We will not defer
to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246
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1 1255, 1257 (9th Cir. 1992). The claimant has the burden of proving that she is unable to
2 perform past relevant work at step four. Id. If the claimant meets this burden, a prima facie
3 case of disability is established. Id.
4 At step five, the burden then shifts to the ALJ to establish that the claimant is not
5 disabled because there is other work existing in “significant numbers” in the national or
6 regional economy that the claimant can do, taking into account the claimant’s RFC, age,
7 education, and work experience. 20 C.F.R. § 404.1560(c)(1)–(2); see also 20 C.F.R.
8 § 404.1520(g)(1). The ALJ usually meets this burden either (1) by the testimony of a
9 vocational expert who assesses the employment potential of a hypothetical individual with
10 all of the claimant’s physical and mental limitations that are supported by the record, or
11 (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 404, subpart P,
12 appendix 2. Lounsburry, 468 F.3d at 1114–15; Hill, 698 F.3d at 1162. The determination
13 of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R.
14 §§ 404.1520, 416.920; Tackett, 180 F.3d at 1099.
15 B. The ALJ’s Application of the Five-Step Process in this Case
16 The ALJ first determined Plaintiff met the insured status requirements of the Social
17 Security Act through December 21, 2021. AR 23, 25. Accordingly, the relevant period for
18 the disability analysis is the alleged disability onset date of May 10, 2017, through
19 November 13, 2019, the date of the ALJ’s decision. AR 37.
20 At step one, the ALJ determined that Plaintiff did not engage in substantial gainful
21 activity since the alleged onset date of May 10, 2017. AR 25. At step two, the ALJ
22 determined that Plaintiff had the following severe impairments: “degenerative disc disease
23 of the cervical and lumbar spine and mental impairments variously diagnosed as
24 depression, anxiety, and posttraumatic stress disorder.” AR 26. These, he determined,
25 significantly limited Plaintiff’s ability to perform basic work activities. AR 26. However,
26 the ALJ determined that Plaintiff’s medically determinable impairments (displaced
27 fracture in left great toe, heel spur, carpal tunnel syndrome of the right wrist, and right
28 shoulder pain) did not represent more than a minimal limitation in her ability to perform
1 basic work activities. AR 26. The ALJ determined that fibromyalgia had not been
2 established as a medical determinable impairment. AR 26–27. The ALJ noted that
3 Plaintiff’s allegations alone were insufficient to establish fibromyalgia, and that the
4 medical evidence from the record did not reflect repeated manifestations of fibromyalgia
5 symptoms or co-occurring conditions. AR 26–27.
6 At step three, the ALJ determined that Plaintiff did not have an impairment or
7 combination of impairments that met or medically equaled any of the impairments in the
8 Listing. AR 27. The ALJ further determined that Plaintiff has the RFC to perform light
9 work as defined in 20 C.F.R § 404.1567(b) and 20 C.F.R. § 416.967(b), except that she
10 “can never climb ladders, ropes, or scaffolds, but she can occasionally climb ramps and
11 stairs, balance, stoop, kneel, crouch, and crawl. The claimant can frequently push, pull, and
12 or reach overhead with the bilateral upper extremities. The claimant must avoid
13 concentrated exposure to vibration and hazards, such as unprotected heights and dangerous
14 machinery. The claimant is limited to unskilled tasks, consistent with a specific vocational
15 preparation of no more than two.” AR 29.
16 The ALJ found that Plaintiff’s impairments could reasonably be expected to cause
17 the alleged symptoms (lumbar and cervical pain with a typical pain level of a six to nine
18 out of ten in her shoulder, back, and leg, as well as partial paresis in her left leg), but that
19 her statements regarding the intensity, persistence, and limiting effects of her symptoms
20 (limited ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, remember,
21 complete tasks, concentrate, and use her hands) were not consistent with the medical
22 evidence in the record. AR 30. For example, the ALJ concluded that, though Plaintiff often
23 complained of back, leg, and arm pain, repeated physical examination findings of her upper
24 and lower extremities were “generally normal” and, at most, noted some tenderness. AR
25 30–31. The ALJ also concluded that no additional mental limitations were needed because,
26 upon review of her treatment records, Plaintiff had the appropriate affect and normal
27 thought processes during exams. AR 32. Further, the ALJ found that Plaintiff’s ability to
28 perform day-to-day activities at a normal level of activity and interaction was inconsistent
1 with her allegations of functional limitations. AR 32.
2 The ALJ found the opinions of the state agency consultants who evaluated Plaintiff’s
3 physical functioning, Dr. Kalmar and Dr. Gleason, to be persuasive. AR 33. The ALJ found
4 the opinion of Nurse Practitioner Batac to be slightly less persuasive. AR 33. The ALJ
5 found the opinions of the state agency consultants who evaluated Plaintiff’s mental
6 functioning, Mr. Hill and Dr. Berkowitz, to be persuasive. AR 33–34. The ALJ found the
7 opinion of Dr. Pudol to be unpersuasive. AR 34. The ALJ found the opinion of the therapist,
8 Ms. Padilla, to be not persuasive. AR 34. The ALJ considered a third-party statement from
9 Plaintiff’s friend, but found it far less persuasive than the opinions of the medical experts.
10 AR 35. The ALJ noted Plaintiff’s treating provider, Dr. Uddin, but did not explain the
11 amount of weight given to her opinion because she “did not provide an assessment of the
12 claimant’s functional limitations.” AR 35.
13 At step four, based on Plaintiff’s RFC and the testimony of the vocational expert,
14 Ms. Ayerza, the ALJ concluded that Plaintiff was unable to perform any past relevant work
15 as an administrative clerk (DOT 219.362-010, Light as generally performed, Semi-Skilled,
16 at Specific Vocational Preparation level (“SVP”) 4). AR 35–36.
17 At step five, upon consideration of the Plaintiff’s age, education, work experience,
18 and RFC, the ALJ found that there were jobs that exist in significant numbers in the
19 national economy that Plaintiff can perform. AR 37. Based on the testimony of the
20 vocational expert, the ALJ found that Plaintiff “is capable of making a successful
21 adjustment to other work that exists in significant numbers in the national economy.” AR
22 37. The ALJ concluded that Plaintiff could work in the following light, unskilled (SVP 2)
23 level occupations: a mailroom clerk (DOT 209.687-026), cashier II (DOT 211.462-010),
24 or a self-service store attendant (DOT 299.677-010). AR 37. Accordingly, the ALJ
25 determined that Plaintiff was not disabled under Sections 216(i), 223(d), or 1614(a)(3)(A)
26 of the Social Security Act at any time from the alleged onset date of May 10, 2017, through
27 November 13, 2019, the date of the ALJ’s decision. AR 37–38.
28 / /
1 III. STANDARD OF REVIEW
2 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the
3 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed
4 only if it is not supported by substantial evidence or if it is based upon the application of
5 improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). The Court
6 reviews the Commissioner’s decision to determine whether the ALJ’s findings are
7 supported by substantial evidence and whether the proper legal standards were applied. See
8 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If so, the Court
9 must affirm the Commissioner’s decision. Id.
10 Substantial evidence means “‘such relevant evidence as a reasonable mind might
11 accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
12 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial
13 evidence means more than a mere scintilla, but less than a preponderance. It means such
14 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
15 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Desrosiers v. Sec’y of
16 Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). The standard is “highly
17 deferential.” Valentine, 574 F.3d at 690. Thus, “‘[w]here evidence is susceptible to more
18 than one rational interpretation,’ the ALJ’s decision should be upheld.” Orn v. Astrue, 495
19 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676. 679 (9th Cir.
20 2005)); see also Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (“[w]here
21 evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion
22 which must be upheld and in reaching his findings, the ALJ is entitled to draw inferences
23 logically flowing from the evidence”) (internal citation omitted). However, the Court “must
24 consider the entire record as a whole, weighing both the evidence that supports and the
25 evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by
26 isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995,
27 1009 (9th Cir. 2014) (internal quotation marks omitted)). The ALJ is responsible for
28 determining credibility and resolving conflicts in medical testimony, and is also
1 responsible for resolving any ambiguities in the record. Magallanes v. Bowen, 881 F.2d
2 747, 750 (9th Cir. 1989). The Court will “review only the reasons provided by the ALJ in
3 the disability determination and may not affirm the ALJ on a ground upon which he did
4 not rely.” Id.; see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon
5 which an administrative order must be judged are those upon which the record discloses
6 that its action was based.”).
7 The Court also may overturn the Commissioner’s denial of benefits if the denial is
8 based on legal error. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014).
9 However, even if the Court finds the decision was based on legal error, it may not reverse
10 an ALJ’s decision if the error is harmless, “which exists when it is clear from the record
11 that the ALJ’s error was inconsequential to the ultimate nondisability determination.” Id.
12 at 932 (internal quotations and citation omitted); see also Burch, 400 F.3d at 679 (“[a]
13 decision of the ALJ will not be reversed for errors that are harmless”).
14 IV. DISCUSSION
15 Plaintiff raises three grounds for reversal in the joint motion: (1) that the ALJ failed
16 to properly weigh the medical opinion evidence of Dr. Pudol, a treating physician, and state
17 agency consultants Drs. Kalmar and Gleason, in determining Plaintiff’s physical RFC;
18 (2) that the ALJ improperly evaluated Plaintiff’s subjective statements; and (3) that the
19 ALJ relied on a flawed hypothetical to the vocational expert. ECF No. 15 at 4. Defendant
20 contends the ALJ’s decision is supported by substantial evidence, free of legal error, and
21 should be affirmed. Id. at 53.
22 A. Whether the ALJ Failed to Properly Weigh Medical Opinion
23 Evidence in Determining Plaintiff’s physical RFC
24 Plaintiff challenges the ALJ’s determinations that the medical opinion of
25 Dr. Christopher Pudol was unpersuasive and the medical opinions of state agency
26 consultants Drs. Kalmar and Gleason were persuasive. AR 34. Dr. Pudol had treated
27 Plaintiff since December 2016 for chronic back pain, among other ailments. AR 586. If
28 Dr. Pudol’s opinion were treated as persuasive, it would likely result in a disability
1 determination because Dr. Pudol’s opinion directly contradicts the RFC assessed by the
2 ALJ and the evaluations of Dr. Kalmar and Dr. Gleason.
3 1. Dr. Pudol’s Opinion
4 On September 9, 2019, Dr. Pudol completed a Fibromyalgia Residual Functional
5 Capacity Questionnaire regarding Plaintiff. AR 1014. Dr. Pudol listed Plaintiff’s prognosis
6 as poor. AR 1014. Dr. Pudol found that Plaintiff met the American College of
7 Rheumatology criteria for fibromyalgia and listed her other diagnosed impairments as
8 “chronic low back pain with sciatica, chronic right shoulder pain, lumbar spinal stenosis.”
9 AR 1014. Dr. Pudol checked the boxes on the form next to these additional impairments:
10 multiple tender points, non-restful sleep, morning stiffness, chronic fatigue, muscle
11 weakness, irritable bowel syndrome, premenstrual syndrome, dysmenorrhea,
12 breathlessness, anxiety, panic attacks, depression, and carpal tunnel syndrome. AR 1014.
13 Dr. Pudol checked the boxes on the form for pain in these locations: lumbosacral spine,
14 cervical spine, thoracic spine, right shoulder, right arm, left arm, left knee, right hand, left
15 hand, right hip, right leg, and left leg. AR 1015. He checked all the boxes in the section for
16 factors that precipitate pain. AR 1015. He checked the box indicating that Plaintiff’s pain
17 would frequently interfere with the attention and concentration needed to perform simple
18 work tasks. AR 1015. He concluded that Plaintiff could not walk the duration of a city
19 block without rest or severe pain. AR 1015. He circled the options for 5 and 10 minutes of
20 sitting before needing to get up. AR 1015. He circled the option for 5 minutes of standing
21 before needing to sit down or walk around. AR 1015. During an 8-hour workday, Dr. Pudol
22 checked the boxes indicating that Plaintiff could sit or stand/walk for less than 2 hours in
23 an 8-hour working day with normal breaks. AR 1016. Dr. Pudol indicated that Plaintiff
24 would need to take unscheduled breaks every 5 minutes, for 5-10 minutes, during an 8-
25 hour working day. AR 1016. Dr. Pudol also estimated that Plaintiff would likely be “absent
26 from work as a result of the impairments or treatment … more than four days per month.”
27 AR 1017.
28 The ALJ found that Dr. Pudol’s opinion was unpersuasive. AR 34. The ALJ found
1 that the opinion lacked supportability and was not consistent with the record. AR 34. With
2 respect to supportability, the ALJ relied heavily on the “checklist-style” of the opinion and
3 its conclusory nature. AR 34. With respect to consistency, the ALJ cited several areas of
4 the record, including medical records and Plaintiff’s own testimony, that the ALJ found to
5 be inconsistent with Dr. Pudol’s opinion. AR 34.
6 Plaintiff contends that, contrary to the ALJ’s assertion, Dr. Pudol did explain the
7 evidence supporting his opinions. ECF No. 15 at 8. Plaintiff notes that Dr. Pudol has been
8 treating Plaintiff since December 2016, seeing her every three months for chronic low back
9 pain with sciatica, chronic right shoulder pain, and lumbar spinal stenosis. Id. at 5. Dr.
10 Pudol “cited to orthopedic treatment records documenting clinical findings and laboratory
11 and diagnostic test results supporting the diagnoses and assessment.” Id. at 5. Plaintiff
12 reiterates that Dr. Pudol’s opinion regarding Plaintiff’s symptoms and functional
13 limitations “were found to be consistent with the available clinical evidence,” and cites to
14 findings in the record. Id. at 5, 10–11. Plaintiff contends that the ALJ placed undue weight
15 on Plaintiff’s activities of daily living and argues that these activities do not contradict the
16 opinions of Dr. Pudol. Id. at 12. Further, Plaintiff contends that the “decision is lacking an
17 explanation for why the ALJ relied on opinions from non-treating, non-examining
18 consultants who are not relevant specialists and whose findings are explicitly contradicted
19 by well supported and consistent opinions from [Plaintiff]’s treating physician.” Id. at 14.
20 Plaintiff argues that the ALJ failed to articulate how he considered evidence relevant to the
21 factors of supportability and consistency in evaluating the opinions. Id. at 14. Plaintiff also
22 contends that the length, frequency, and nature of treatment are still relevant factors in
23 determining the persuasiveness of medical opinions. Id. at 15.
24 Defendant argues that the ALJ’s decision and explanation fully comply with the new
25 regulatory framework for evaluating medical opinions and medical evidence governs this
26 case, and thus were not in error. Id. at 15. This new framework eliminates the treating
27 physician rule and places medical opinions “on an equal footing.” Id. at 22. It requires the
28 ALJ to explain how he considered the factors of supportability and consistency when
1 evaluating any medical opinion. Id. at 17. Defendant argues that the ALJ did just that with
2 respect to Dr. Pudol’s opinion, specifically noting that “Dr. Pudol did not support his
3 opinion with adequate rationale and his opinion was not consistent with the overall
4 evidence of record and Plaintiff’s daily activities.” Id. at 26. Defendant contends that the
5 ALJ permissibly found that Dr. Pudol’s opinion was in the form of a checklist and he only
6 included conclusions regarding functional limitations without a detailed rationale for those
7 conclusions. Id. at 28. Defendant argues that the ALJ recognized that the medical record
8 “supports the existence of degenerative disc disease of the lumbar and cervical spine,” but
9 also noted that other medical findings, such as routinely normal gait and full motor
10 strength, do not support greater physical limitations than those identified in the RFC. Id. at
11 30–31.
12 2. Dr. Kalmar and Dr. Gleason’s Opinions
13 Dr. Kalmar and Dr. Gleason provided opinions as non-examining state agency
14 consultants. AR 149, 152. Dr. Kalmar reviewed and summarized Plaintiff’s medical
15 records in a report dated May 4, 2018. AR 149. Dr. Kalmar noted that Plaintiff had intact
16 motor function, possible widening of the distal radioulnar joint, mildly displaced oblique
17 fracture on the fourth proximal phalanx, multiple instances of decreased range of motion,
18 antalgic gait, moderate spondylosis, mild-to-moderate lumbar dextroscoliosis, moderate
19 right neural foraminal stenosis, bilateral facet arthropathy with mild left neural foraminal
20 stenosis, and lumbar spondylosis severely involving L3-L4 where significant spinal
21 stenosis and left neural foraminal narrowing are demonstrated. AR 149. Dr. Kalmar
22 concluded that Plaintiff could perform work consistent with a light exertional level but
23 could never climb ladders, ropes or scaffolds; could occasionally climb ramps and stairs,
24 balance, stoop, kneel, crouch, and crawl; frequently reach overhead bilaterally; and should
25 avoid concentrated exposure to extreme temperatures, vibration, pulmonary irritants, or
26 hazards. AR 152–54. Dr. Kalmar opined that Plaintiff could sit with normal breaks for 6
27 hours in an 8-hour workday. AR 153. He opined that Plaintiff had intact motor functions.
28 AR 154. He also opined that Plaintiff’s “statements about the intensity, persistence, and
1 functionally limiting effects of the symptoms [are not] substantiated by the objective
2 medical evidence alone[.]” AR 152. To that regard, he opined that the most informative
3 factors he assessed were “ADLs, the location, duration, frequency and intensity of the
4 individual’s pain and other symptoms, [and] precipitating and aggravation factors.” AR
5 152. He then concluded that Plaintiff’s statements were “partially consistent” with the
6 medical evidence on file. AR 152.
7 Dr. Gleason review and summarized Plaintiff’s records in a report dated
8 September 29, 2018. AR 152. Like Dr. Kalmar, Dr. Gleason concluded that Plaintiff’s
9 “statements about the intensity, persistence, and functionally limiting effects of the
10 symptoms [are not] substantiated by the objective medical evidence alone[.]” AR 152. He
11 opined that the most informative factors he assessed were “ADLs, the location, duration,
12 frequency and intensity of the individual’s pain and other symptoms, [and] precipitating
13 and aggravation factors.” AR 152. He then concluded that Plaintiff’s statements were
14 “partially consistent” with the medical evidence on file. AR 152. Dr. Gleason summarized
15 plaintiff’s records, noting findings of “lumbar spondylosis, severely involving L3-L4
16 where significant spinal stenosis and left neural foraminal narrowing are demonstrated,”
17 carpal tunnel, multiple epidural steroid injections to help with pain, “has problem during
18 arm inwards,” noticed mild tenderness during exam, “chronic low back pain,” cervical
19 radiculopathy, chronic shoulder pain. AR 164. He summarized plaintiff’s allegations,
20 noting “the claimant’s spinal stenosis causes her lumbar and cervical pain, her typical pain
21 level of about a 6–9 in her shoulder, back and leg and she has partial paresis in her left leg.
22 She has nerve pain in her left leg, groin, and knee. She has had severe nerve pain in her
23 right arm which she had carpal tunnel surgery for. She is only able to stand for about 2
24 minutes before needing to move or sit down. She needs to be moving and shifting in her
25 chair constantly because she cannot get comfortable…. The claimant continues to have
26 pain and discomfort due to her osteoarthritis in her cervical spine, herniated discs, lumbar
27 radiculopathy and cervical myelopathy.” AR 163. He also summarized objective medical
28 findings. In July 2018 she was seen for back pain and was given an epidural since a prior
1 one helped with pain. AR 164. Her broken toe had significantly healed, but she still had
2 some pain. AR 164. Plaintiff “has problem during arm inwards” and noted “mild
3 tenderness” in her biceps. AR 164.
4 Plaintiff argues that the ALJ erred in finding Dr. Kalmar’s and Dr. Gleason’s
5 opinions to be persuasive because their opinions were limited to a review of Plaintiff’s
6 treatment records through August 2018, they did not examine Plaintiff, and they were not
7 specialists. Plaintiff does not identify any specific treatment records post-dating August
8 2018 that would have modified their analysis. Defendant argues that Plaintiff’s records
9 from September 2018 to July 2019 would not have warranted more restrictive limitations.
10 Id. at 31. Defendant contends that the ALJ was not required to address the specialization
11 factor with respect to Dr. Kalmar or Dr. Gleason in light of his supportability and
12 consistency analysis. Id. at 32 (citing 20 C.F.R. § 404.1520c(b)(2)).
13 3. Legal Standard
14 Plaintiff filed for disability after March 27, 2017. AR 259–60 (filed on March 21,
15 2018). The Social Security Administration’s revised regulations for considering medical
16 opinions and prior administrative medical findings, therefore, apply. See 20 C.F.R. §
17 404.1520c (2017). Under the revised regulations, an ALJ must evaluate the
18 “persuasiveness” of any medical opinion and articulate his assessment as to each. Id.
19 In evaluating persuasiveness, an ALJ must consider the medical source opinion’s
20 supportability, its consistency, the relationship between the source and the claimant, the
21 source’s specialization, and other factors such as the source’s knowledge of other evidence,
22 social security requirements, and whether there was subsequently submitted evidence. Id.;
23 20 C.F.R. § 404.1520c(c)(1)–(c)(5). Though an ALJ may discuss each of the factors to be
24 considered in his opinion, the regulations only require the ALJ to explain how he
25 considered the most important factors—supportability and consistency—when
26 determining a medical source’s persuasiveness, unless two conflicting medical sources are
27 both equally well-supported and consistent with the record. 20 C.F.R. §
28 404.1520c(b)(2)–(3).
1 Departing from prior case law, under the new regulations, an ALJ is not required to
2 “defer or give any specific evidentiary weight, including controlling weight, to any medical
3 opinion(s) or prior administrative finding(s), including those from [a claimant’s] medical
4 sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The new regulations override the
5 treating physician rule, which automatically gave greater weight to the medical opinions
6 of treating physicians, required clear and convincing reasons for rejecting an
7 uncontradicted medical opinion of a treating physician, and required specific and legitimate
8 reasons supported by substantial evidence in the record for rejecting the contradicted
9 medical opinion of a treating physician. Jones v. Saul, No. 2:19-cv-01273-AC, 2021 WL
10 620475, at *6–*10 (E.D. Cal. Feb. 17, 2021); see Lester v. Chater, 81 F.3d 821, 830–31
11 (9th Cir. 1995).
12 The Ninth Circuit has not yet addressed whether, and to what extent, ALJs are still
13 held to the “clear and convincing” and “specific and legitimate” standards when rejecting
14 a medical opinion. Robert D. v. Kijakazi, No. 20cv2132-AJB-MSB, 2021 WL 5905734, at
15 *3 (S.D. Cal. Dec. 14, 2021). Through regulation, the Social Security Administration may
16 properly displace judicial precedent when an administrative agency intervenes by
17 providing an “authoritative and reasonable interpretation of a statute.” See Lambert v. Saul,
18 980 F.3d 1266, 1268, 1275 (9th Cir. 2020). Thus, district courts in the Ninth Circuit
19 generally have determined that the Circuit’s prior rule providing deference to treating
20 providers no longer applies because of the new regulations. See, e.g., Kathy Jean T. v. Saul,
21 No. 20cv1090-RBB, 2021 WL 2156179, at *5 (S.D. Cal. May 27, 2021) (“This measure
22 of deference to a treating physician is no longer applicable under the 2017 revised
23 regulations.”); but see Kathleen G. v. Comm’r of Soc. Sec., No. C20-461-RSM, 2020 WL
24 6581012, at *3 (W.D. Wash. Nov. 10, 2020) (finding that the “specific and legitimate”
25 standard for rejecting contradicted opinions of a treating doctor continues to serve as a
26 “benchmark against which the Court evaluates [the ALJ’s] reasoning”). This Court “agrees
27 with the numerous district courts that found the treating source rule is inconsistent with the
28 SSA’s 2017 regulations, which effectively displace or override it.” Julie R. M. v. Kijakazi,
1 No. 20cv1608-LL-MDD, 2021 WL 4993034, at *4 (S.D. Cal. Oct. 26, 2021); see Allen T.
2 v. Saul, No. 19-1066, 2020 WL 3510871, at *3 (C.D. Cal. June 29, 2020) (“Nevertheless,
3 the Court is mindful that it must defer to the new regulations, even where they conflict with
4 prior judicial precedent, unless the prior judicial construction ‘follows from the
5 unambiguous terms of the statute and thus leaves no room for agency discretion.’ The Court
6 defers to the new rules here.”) (quoting Nat’l Cable & Telecomms. Ass'n v. Brand X
7 Internet Servs., 545 U.S. 967, 982 (2005)); see, e.g., Jones, 2021 WL 620475, at *6–*10;
8 Joseph Perry B. v. Saul, No. SACV 20-1196-KS, 2021 U.S. Dist. LEXIS 59742, at *7
9 (C.D. Cal. Mar. 29, 2021). Accordingly, the Court will address the ALJ’s evaluation of the
10 medical opinions at issue here under the 2017 regulations, with an eye to whether the ALJ
11 adequately explained his reasons for his assessment of the persuasiveness of Dr. Pudol’s,
12 Dr. Kalmar’s, and Dr. Gleason’s opinions. See Titus L.S. v. Saul, No. 2:20-cv-04825-AFM,
13 2021 WL 275927, at *7–*9 (C.D. Cal. Jan. 26, 2021); see, e.g., Kathleen G., 2020 WL
14 6581012, at *3 (“Whatever factors the Commissioner considers in evaluating a medical
15 opinion, he must explain his reasoning to allow for meaningful judicial review.”); Jones,
16 2021 WL 620475, at *8 (“The new regulation does not allow the ALJ to forego articulation
17 of their reason or reasons altogether; rather, it provides specific articulation requirements.”)
18 (internal citations omitted).
19 Under the revised regulations, supportability is the extent to which a source presents
20 relevant objective medical evidence and explanations to support its opinion or finding. 20
21 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). The more relevant the evidence and
22 explanations are, the more persuasive the opinion or finding will be. See id. Consistency is
23 the extent to which an opinion or finding is consistent with evidence from other medical
24 and nonmedical sources. 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). The more
25 consistent it is with evidence from other sources, the more persuasive it will be. See id.
26 / /
27 / /
28 / /
1 4. Discussion
2 The ALJ evaluated Dr. Pudol’s opinion as follows:
3 The opinion of Christopher Pudol, D.O., dated September 9, 2019, is
unpersuasive. [] He indicated that the claimant [] was capable of less than
4
sedentary exertion and required multiple unscheduled breaks every five
5 minutes during an eight-hour workday, yet did not require an assistive device
to ambulate, and would likely miss more than four days of work per month. []
6
This opinion is not persuasive as it lacks supportability and is inconsistent
7 with the record. As for supportability, this checklist-style form appears to have
been completed as an accommodation to the claimant and includes only
8
conclusions regarding functional limitations without any detailed rationale for
9 those conclusions. As for consistency, this opinion is inconsistent with the
record. Exam findings chronicle generally intact neurological functioning,
10
including normal gait, negative straight leg raises, and full motor strength of
11 the extremities []. Further, the claimant reports that she is physically able to
manage self-care, operate a car, and perform light household chores and
12
yardwork such as light laundry and raking leaves. [] Dr. Pudol also assessed
13 a GAF score of 50 in June 2019, which is unpersuasive. [] This score is
inconsistent with his accompanying notes that indicate the claimant
14
demonstrated appropriate mood and affect, reported her functioning was only
15 “somewhat difficult” in describing her depression as “moderate” and her
anxiety as “mild.” [] Finally, the opinions of Dr. Christopher Pudol, D.O.,
16
dated to November 2017 and February 9, 2018, finding the claimant
17 “currently unable to work in her usual capacity” or indicating that the claimant
was “disabled” for temporary periods are not persuasive. [] The conclusion
18
that a claimant cannot work is an “issue reserved to the commissioner,” which
19 makes it evidence that is inherently neither valuable nor persuasive pursuant
to the regulation.
20
21 AR 34 (internal citations omitted).
22 Dr. Pudol’s opinion was comprised largely of short responses or checked boxes
23 without any explanations. AR 1014–17. The ALJ found that his opinion did not meet the
24 supportability factor because of this lack of explanation. Id. “An ALJ is not required to
25 take medical opinions at face value, but may take into account the quality of the explanation
26 when determining how much weight to give a medical opinion.” Ford v. Saul, 950 F.3d
27 1141, 1155 (9th Cir. 2020). An ALJ “may permissibly reject check-off reports that do not
28 contain any explanation of the bases of their conclusions.” Id. (quoting Molina v. Astrue,
1 674 F.3d 1104, 1111 (9th Cir. 2012)). Plaintiff argues that Dr. Pudol’s questionnaire did
2 include rationale for his conclusions because he “cited to orthopedic treatment records
3 documenting clinical findings and laboratory and diagnostic test results supporting the
4 diagnoses and assessment.” ECF No. 15 at 5. However, the “citation” Plaintiff refers to is
5 Dr. Pudol’s response to a question about “identify[ing] any clinical findings, laboratory
6 and test results that show your patient’s medical impairments,” which stated curtly: “see
7 orthopedic notes.” AR 1014. There are no notes attached to Dr. Pudol’s opinion, even
8 though the first page of the form states that relevant treatment notes should be attached.
9 AR 1014.
10 The ALJ also found that Dr. Pudol’s opinion did not satisfy the consistency factor
11 in the regulations. “Inconsistency between a physician’s treatment notes and [his] opinion
12 is an acceptable reason to discount the source’s opinion.” Julie R. M., 2021 WL 4993034,
13 at *4; see, e.g., Jones, 2021 WL 620475, at *10 (holding, in the context of the 2017 revised
14 regulations, that the ALJ reasonably found a treating physician’s opinion was not
15 persuasive where it was inconsistent with the doctor’s own treatment notes). Upon review
16 of the record, the Court agrees that Dr. Pudol’s report is inconsistent with the medical
17 record. See AR 1014. Dr. Pudol’s report notes that Plaintiff’s anxiety, depression, and
18 PTSD would affect her ability to work a regular job on a sustained basis; however, he
19 repeatedly reported that Plaintiff was “oriented to time, place person & situation,” had an
20 “appropriate mood and affect,” and was negative for other psychological symptoms. AR
21 656 (May 12, 2017); AR 591 (June 21, 2017); AR 595 (Aug. 23, 2017); AR 638 (Oct. 11,
22 2017); AR 819 (May 14, 2018); AR 804 (Aug. 9, 2018); AR 983 (Jan. 21, 2019); AR 969
23 (Apr. 1, 2019); AR 959 (May 10, 2019); AR 945 (July 25, 2019); AR 939 (Aug. 23, 2019).
24 Further, Dr. Pudol repeatedly categorized Plaintiff’s depression as “mild.” AR 1012 (Aug.
25 9, 2018); AR 1002 (Sept. 26, 2018); AR 984 (Jan. 21, 2019); AR 970 (Apr. 1, 2019); AR
26 965 (May 10, 2019).
27 Dr. Pudol’s report lists “muscle weakness” as one of Plaintiff’s impairments, but
28 Nurse Practitioners Jersey and Batac repeatedly reported that her “straight leg raise test
1 negative bilaterally, FABERs, Gaenslen’s, distraction, thigh thrust, and compression are
2 normal” and her cervical and lumbosacral “muscle strength was within normal limits.” AR
3 694 (June 15, 2017); AR 756 (June 29, 2017); AR 752 (July 27, 2017); AR 749 (Aug. 24,
4 2017); AR 725 (Jan. 11, 2018); AR 721 (Feb. 8, 2018); AR 736 (Nov. 21, 2017); AR 730
5 (Dec. 12, 2017); AR 717 (Mar. 15, 2018); AR 712 (Apr. 17, 2018); AR 707 (May 30,
6 2018); AR 698 (June 27, 2018); AR 856 (Aug. 6, 2018); AR 851 (Sept. 10, 2018); AR 846
7 (Nov. 13, 2018); AR 841 (Jan. 21, 2019); AR 838 (Mar. 28, 2019); AR 834 (June 4, 2019).
8 Dr. Pudol’s report concluded that Plaintiff was capable of less than sedentary exertion and
9 required unscheduled breaks every five minutes, but there are repeated references in the
10 medical record to a normal gait and ability to stand or ambulate without assistance. AR 477
11 (Apr. 3, 2017); 450 (May 22, 2017); AR 694 (June 15, 2017); AR 756 (June 29, 2017); AR
12 753 (July 27, 2017); AR 749 (Aug. 24, 2017); AR 726 (Jan. 11, 2018); AR 722 (Feb. 8,
13 2018); AR 736 (Nov. 21, 2017); AR 730 (Dec. 12, 2017); AR 717 (Mar. 15, 2018); AR
14 712 (Apr. 17, 2018); AR 707 (May 30, 2018); AR 698 (June 27, 2018); AR 856 (Aug. 6,
15 2018); AR 851 (Sept. 10, 2018); AR 846 (Nov. 13, 2018); AR 842 (Jan. 21, 2019); AR 838
16 (Mar. 28, 2019); AR 834 (June 4, 2019).
17 The Court has carefully reviewed the record, and agrees that there are, for example,
18 instances of tenderness to spine palpation. AR 694 (June 15, 2017); AR 752 (July 27,
19 2017); AR 749 (Aug. 24, 2017); AR 725 (Jan. 11, 2018); AR 721 (Feb. 8, 2018); AR 736
20 (Nov. 21, 2017); AR 729 (Dec. 12, 2017); AR 712 (Apr. 17, 2018); AR 706 (May 30,
21 2018); AR 697 (June 27, 2018); AR 838 (Mar. 28, 2019); AR 834 (June 4, 2019); AR 745
22 (Sept. 21, 2017); AR 741 (Oct. 26, 2017). However, there are also instances of no
23 tenderness to spine palpation. AR 756 (June 29, 2017); AR 717 (Mar. 15, 2018); AR 712
24 (Apr. 17, 2018); AR 706 (May 30, 2018); AR 697 (June 27, 2018); AR 856 (Aug. 6, 2018);
25 AR 851 (Sept 10, 2018); AR 846 (Nov. 13, 2018); AR 841 (Jan. 21, 2019); AR 830 (July
26 22, 2019); AR 861 (July 23, 2018). Additionally, of the 14 instances of tenderness, 6 of
27 those times, the spinal ranges of motion were normal. AR 694 (June 15, 2017); AR 752
28 (July 27, 2017); AR 749 (Aug. 24, 2017); AR 697 (June 27, 2018); AR 745 (Sept. 21,
1 2017); AR 741 (Oct. 26, 2017). As such, “‘[w]here evidence is susceptible to more than
2 one rational interpretation,’ the ALJ’s decision should be upheld.” Orn, 495 F.3d at 630.
3 The ALJ’s finding that Plaintiff’s activities of daily living conflicted with Dr.
4 Pudol’s report is sufficiently developed. See Trevizo v. Berryhill, 871 F.3d 664, 676 (9th
5 Cir. 2017) (The ALJ must develop the record to demonstrate how the daily activities are
6 inconsistent with the physician's opinion). During the hearing, Plaintiff testified that she
7 performs light household chores, drives her car locally, and is physically able to manage
8 self care. AR 112–16. She also was able to do some light cleaning for an elderly couple.
9 AR 112. The ALJ found the Plaintiff’s statements conflicted with Dr. Pudol’s report, but
10 the ALJ still took Plaintiff’s limitations into consideration for the RFC. AR 30–32; see
11 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“[D]isability claimants should not
12 be penalized for attempting to lead normal lives in the face of their limitations”); Fair v.
13 Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[M]any home activities are not easily
14 transferable to . . . the more grueling environment of the workplace, where it might be
15 impossible to periodically rest or take medication.”); Cooper v. Bowen, 815 F.2d 557, 561
16 (9th Cir. 1987) (a disability claimant need not “vegetate in a dark room excluded from all
17 forms of human and social activity” to be deemed eligible for benefits).
18 As set forth above, the Court finds that the ALJ permissibly treated Dr. Pudol’s
19 report as unpersuasive. The ALJ adequately addressed consistency and supportability,
20 pursuant to the revised regulations. 20 C.F.R. § 404.1520c(b)(2) (“we will explain how we
21 considered the supportability and consistency factors” and “may, but are not required to,
22 explain how we considered the [other enumerated] factors”).
23 The ALJ also properly weighed the opinions of the state agency consultants. Dr.
24 Kalmar reviewed Plaintiff’s file on May 4, 2018, and Dr. Gleason reviewed treatment
25 records through August 2018. This means that the agency consultants did not have the
26 opportunity to review: x-ray of foot on May 11, 2018, which showed a phalanx fracture
27 (AR 769, 771); x-ray of right shoulder on July 9, 2018, which was negative (AR 824); ten
28 pain management appointments from May 30, 2018 to July 22, 2019 (AR 705, 696, 859,
1 854, 849, 844, 840, 836, 832, 828); seven physical therapy appointments in August 2019
2 (AR 919, 864, 868, 872, 876, 880, 884); ten appointments for chronic pain and depression
3 from September 19, 2018, to August 23, 2019, which included appointments regarding
4 Plaintiff’s memory impairment (AR 1004, 998, 992, 986, 981, 967, 962, 956, 943, 937);
5 eleven psychotherapist appointments from November 19, 2018 to September 2, 2019 (AR
6 890–99); and a September 14, 2019 neurologist appointment (AR 1018).
7 The fact that the state agency consultants did not have the benefit of reviewing these
8 additional records, however, is not a sufficient reason to diminish the value or weight of
9 their opinions as evidence in support of the RFC determination. “Consultative examiners,
10 who evaluate a claimant’s condition during the initial phases of the benefits application
11 process, will never have all of the evidence available to the ALJ, whose decision is rendered
12 often years later, at which point the claimant will have amassed additional evidence of his
13 alleged disability.” Jose Z. v. Saul, No. EDCV 18-2476-KS, 2020 WL 434259, at *8 (C.D.
14 Cal. Jan. 28, 2020) (internal record citations omitted). Importantly, Dr. Kalmar and
15 Dr. Gleason were able to review the MRI results from March 9, 2017, AR 495–96, and
16 May 17, 2017, AR 497–98, and consider them in their analysis. Plaintiff has failed to
17 explain how their review of a necessarily incomplete record caused reversible error in this
18 case.
19 The Court notes that neither Dr. Kalmar, nor Dr. Gleason, nor Dr. Pudol are
20 specialists. Plaintiff, however, argues that the ALJ’s decision lacks an explanation for why
21 he relied on opinions of Dr. Kalmar and Dr. Gleason, who are not specialists and who never
22 examined Plaintiff. ECF No. 15 at 14. Though ALJs must “explain how [they] considered
23 the supportability and consistency factors for a medical source’s medical opinions” in the
24 written decision, ALJs “may, but are not required to, explain” how they also considered
25 the source’s specialization, and other factors. 20 C.F.R. §§ 404.1520c(b)(2), 416.920(b)(2),
26 416.920(c)(3)–(5); see 20 C.F.R. § 416.920c(b)(2) (“We may, but are not required to,
27 explain how we considered the factors in paragraphs (c)(3) through (c)(5) of this section,
28 as appropriate, when we articulate how we consider medical opinions and prior
1 administrative medical findings in your case record.”); see also Julie R.M., 2021 WL
2 4993034, at *4 (“The ALJ is not required to explain how they consider the remaining
3 factors (the medical source’s relationship with the claimant, specialization, or other factors)
4 unless the ALJ finds that ‘two or more medical opinions or prior administrative medical
5 findings about the same issue are both equally well supported . . . and consistent with the
6 record . . . but are not exactly the same.’) (ellipses in original) (quoting 20 C.F.R. §§
7 404.1520c(b)(2)–(3)). Here, since the ALJ did not find two or more medical opinions or
8 prior administrative medical findings about the same issue to be equally well supported
9 and consistent with the record, he was only required to evaluate supportability and
10 consistency, which he did. See, e.g., Julie R.M., 2021 WL 4993034, at *6 (finding that the
11 ALJ sufficiently evaluated two medical sources’ opinions, who were specialists in mental
12 health and had a long-term relationship with the claimant, and “did not err by omitting his
13 reasoning regarding the factors of specialization and relationship with the claimant,”
14 because doing so is not required under the 2017 revision).
15 B. Whether the ALJ Improperly Evaluated Plaintiff’s Subjective
16 Statements
17 Plaintiff takes issue with the ALJ’s finding that, although Plaintiff’s medically
18 determinable impairments could reasonably be expected to cause the alleged symptoms,
19 Plaintiff’s statements concerning the intensity, persistence, and limited effects of her
20 symptoms were not consistent with the medical record. ECF No 15 at 38. Plaintiff argues
21 that the ALJ’s reliance on Plaintiff’s activities of daily living was improper, as was his
22 conclusion that clinical and objective evidence does not support a finding of physical
23 disability. Id. at 38. Plaintiff contends that “[b]ecause [Plaintiff] produced evidence of
24 underlying impairments that the ALJ determined could reasonably be expected to cause
25 Plaintiff’s alleged symptoms[], no specific objective findings were required to support her
26 statements regarding the severity of her conditions.” Id. at 39. Plaintiff notes her honorable
27 work history, which enhances her credibility when claiming an inability to work. Id. at 39.
28 Defendant agrees that the ALJ is required to make specific findings regarding a
1 claimant’s subjective allegations, but contends that the ALJ “did not ‘arbitrarily discredit’
2 a claimant’s subjective testimony” and that the “ALJ here provided valid reasons,
3 supported by substantial evidence in the record, in finding Plaintiff’s symptom testimony
4 not fully consistent with the record.” Id. at 40. Defendant argues that, while consistency
5 with the medical evidence cannot be the sole reason for rejecting Plaintiff’s statements, it
6 was the ALJ’s “primary consideration” because it was a “relevant factor that []he was
7 required to consider.” Id. at 41. Defendant argues that the ALJ reasonably found that
8 Plaintiff’s subjective complaints were inconsistent with the medical evidence—repeated
9 instances where she exhibited normal gait, full motor strength, and lack of edema—and
10 Plaintiff’s activities of daily living, which suggested that Plaintiff was quite functional and
11 able to care for her own personal needs. Id. at 41–43.
12 1. Legal Standard
13 “An individual’s statement as to pain or other symptoms shall not alone be
14 conclusive evidence of disability.” 42 U.S.C. § 423(d)(5)(A). There must be some clinical
15 or diagnostic evidence “which show[s] the existence of a medical impairment that results
16 from anatomical, physiological, or psychological abnormalities” that reasonably could be
17 expected to produce the alleged pain or other symptoms. Id. Assuming such a medical
18 underpinning exists, the ALJ then will evaluate whether the claimant’s symptoms
19 reasonably can be accepted as consistent with (1) objective medical evidence, such as
20 medical signs and laboratory findings and (2) other evidence such as previous statements
21 by the claimant, treating and non-treating sources, and other individuals “about [the
22 claimant’s] medical history, diagnosis, prescribed treatment, daily activities, efforts to
23 work,” and ability to work. 20 C.F.R. § 404.1529(a).
24 When evaluating the credibility of a claimant’s allegations regarding subjective
25 symptoms such as pain, the ALJ must engage in a two-step analysis. See Molina, 674 F.3d
26 at 1112. First, the ALJ must determine whether there is objective medical evidence of an
27 underlying impairment that “could reasonably be expected to produce the pain or other
28 symptoms alleged.” Id. (citations omitted). The claimant is not required to show that an
1 underlying impairment could reasonably be expected to cause the severity of the pain
2 alleged, but only that it could have reasonably caused some degree of the pain. See Vasquez
3 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). Second, if the first step has been satisfied and
4 there is no evidence of malingering, then the ALJ may reject the claimant's claims about
5 the severity of her symptoms “only by offering specific, clear and convincing reasons for
6 doing so.” Smolen, 80 F.3d at 1281 (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.
7 1993)); see Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008).
8 “The clear and convincing standard is the most demanding required in Social Security
9 cases.” Garrison, 759 F.3d at 1015
10 “An ALJ does not provide specific, clear, and convincing reasons for rejecting a
11 claimant’s testimony by simply reciting the medical evidence in support of his or her
12 residual functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489
13 (9th Cir. 2015). The ALJ is required to “specify which testimony [he] finds not credible,
14 and then provide clear and convincing reasons, supported by evidence in the record, to
15 support that credibility determination.” Id. A “line-by-line exegesis of the claimant’s
16 testimony” is not required, but the ALJ must do more than offer “non-specific conclusions
17 that [the claimant’s] testimony was inconsistent with her medical treatment.” Lambert, 980
18 F.3d at 1277.
19 2. Discussion
20 At step one, the ALJ found that Plaintiff’s “medically determinable impairments
21 could reasonably be expected to cause the alleged symptoms.” AR 30. At step two, the ALJ
22 concluded that Plaintiff’s “statements concerning the intensity, persistence and limiting
23 effects of these symptoms are not entirely consistent with the medical evidence and other
24 evidence in the record[.]” AR 30. The ALJ elaborated:
25 Subsequent treatment records from January 10, 2018 show ongoing
complaints of arm and leg pain, but physical exam findings of the upper and
26
lower extremities were generally normal []. Subsequent records, from
27 February 8, 2018 to June 27, 2018, show the claimant had ongoing complaints
of neck pain, upper extremity pain, back pain, and lower extremity pain. While
28
1 physical exam findings revealed some tenderness and some reduction in range
of motion of the cervical and or lumbar spine, her lumbar and cervical
2
paraspinal muscle strength and tone were within normal limits, and her gait
3 and station was normal.[]. Likewise, when the claimant continued to complain
of back pain and reported a heaviness on her legs on July 5, 2018, she had
4
only mild musculoskeletal tenderness and on examination[]. The claimant was
5 advised to apply Bengay, ice, or heat, and she was told to practice stretching.
[]. The following month, the claimant complained of shoulder pain, but her
6
physical exam findings were normal [], and studies of the shoulder were
7 negative [].
. . .
8
Recent records, from September 10, 2018 to July 22, 2019, show ongoing
9 complaints of low back pain, leg pain, shoulder pain, and even hip pain, but
physical exam findings were generally unremarkable. Physical exam findings
10
generally revealed some tenderness and reduced range of motion to the
11 cervical and or lumbar spine but no obvious deformities to the upper or lower
extremities, normal gait, full motor strength, and negative straight leg raise.
12
. . .
13 Recent examinations show the claimant presented with depressed and anxious
affect, tearful at times, and with feelings of guilt, helplessness, and or
14
worthlessness, but she was oriented to person, place, and time, was
15 cooperative, and generally exhibited normal thought processes [].
. . .
16
As for the claimant’s statements about the intensity, persistence, and limiting
17 effects of her symptoms, they are inconsistent with her reported day-to-day
activities. I must assess the consistency of the claimant’s statements about the
18
intensity, persistence, and limiting effects of symptoms with the objective
19 medical evidence and the other evidence of record. Despite her combination
of alleged impairments, the claimant has engaged in a somewhat normal level
20
of daily activity and interaction. The claimant admitted to activities of daily
21 living including attending to her personal hygiene, preparing light meals,
performing light household chores, managing her finances, shopping in stores,
22
driving her car, socializing with others, and displaying sufficient
23 concentration and attention to follow television programs []. Some of the
physical and mental abilities and social interactions required in order to
24
perform these activities are the same as those necessary for obtaining and
25 maintaining employment. I find the claimant’s ability to participate in such
activities is inconsistent with her allegations of functional limitations.
26
27 AR 32 (internal citations omitted). Upon careful review of the record, the Court concurs
28 that there are inconsistencies. For example, Nurse Practitioner Batac examined Plaintiff in
1 July 2019 and although Plaintiff “had a concern [about] her memory,” upon examination,
2 Plaintiff’s “memory [was] intact, immediate recall intact, long-term recall intact.” AR 828,
3 830. Likewise, Plaintiff often reported that her pain worsened when cold, but that it
4 lessened with ice. AR 854, 840, 836, 832, 828. In Nurse Practitioner Clark’s assessment of
5 Plaintiff’s psychiatric systems, she notated that Plaintiff was “feeling down, depressed or
6 hopeless and little interest or pleasure in doing things,” but simultaneously listed her
7 psychiatric system as “negative” for problems, and that Plaintiff was “oriented to time,
8 place, person & situation. Appropriate mood and affect.” AR 627. Similarly, Plaintiff
9 reported “depressed mood, fatigue, anxiety, and weakness” to Nurse Practitioner Batac,
10 but upon examination, Plaintiff had “muscle strength within normal limits,” was “oriented
11 to person, place and time,” and her affect was appropriate. AR 851.
12 “In evaluating the claimant’s testimony, the ALJ may use ‘ordinary techniques of
13 credibility evaluation.’ [] For instance, the ALJ may consider inconsistencies either in the
14 claimant’s testimony or between the testimony and the claimant’s conduct, … and ‘whether
15 the claimant engages in daily activities inconsistent with the alleged symptoms.’” Molina,
16 674 F.3d at 1113. The Court finds that the ALJ sufficiently considered inconsistencies and
17 provided clear and convincing reasons for discrediting some of Plaintiff’s subjective
18 testimony.
19 C. Whether the ALJ Relied on a Flawed Hypothetical to the
20 Vocational Expert
21 Plaintiff argues that the ALJ failed to present a hypothetical to the vocational expert
22 that accurately described all of Plaintiff’s mental limitations. ECF No. 15 at 45. Ms.
23 Ayerza, the vocational expert, testified that Plaintiff’s 15-year work history “fits into the
24 category of administrative clerk, which is also called general office clerk. That would be
25 light work per the DOT, SVP: 4, so semi-skilled work, DOT number 219.362-010. … they
26 were performed in the medium range.” AR 134–35. The ALJ asked Ms. Ayerza the
27 following hypothetical question:
28 / /
1 If we assume a hypothetical individual of Ms. Kramer's age, and her
educational background, and her work history as you've just summarized who
2
could perform no greater than light work, and who would not be able to climb
3 any ladders, or ropes, or scaffolds. And who could perform all other postural
activities on an occasional basis. Who could also frequently push and pull
4
and/or reach overhead with the bilateral upper extremities. And lastly, who
5 would also need to avoid concentration exposure to vibration, and also
hazards such as unprotected heights and/or dangerous machinery. In your
6
opinion, would someone having those restrictions be able to perform Ms.
7 Kramer's previous occupations as a general office clerk or administrative
clerk?
8
9 AR 135–36. Ms. Ayerza responded with mail room clerk (light, unskilled, SVP 2), cashier
10 II (light, unskilled, SVP 2), and self-service store attendant (light, unskilled, SVP 2). AR
11 136–37. The ALJ asked a follow up hypothetical:
12 And how about if we assume an individual with those same limitations as that
first hypothetical, but who would [be] limited to only unskilled work duties
13
as say as would be consistent with an SVP level to 1 to 2, but no greater than
14 2. Would such an individual, first of all, be able to perform that prior job as
an administrative clerk?
15
16 AR 137. Ms. Ayerza responded, “no.” AR 137. The ALJ followed up:
17 And how about if our individual with those same cumulative limitations as
that second hypothetical would be also limited to only sedentary work
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activity, would such an individual -- would there be any types of jobs that you
19 feel such an individual would still be able to perform?
20
AR 137–38. Ms. Ayerza responded, “There would be some sedentary, unskilled jobs. And
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also, there would be sedentary jobs related to the worker's past work history. Most
22
noticeably receptionist and information clerk. … Yes [there would be some skill
23
transferability].” AR 138. The ALJ inquired further:
24
How about if we have an individual who say would be off task for even
25 unskilled work duties, say at a rate of 25 percent of their typical workday on
a consistent basis. Would such an individual be able to sustain any fulltime
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competitive work at all in the national economy?
27
AR 138. Ms. Ayerza responded, “that results in the person not competing at least the 80th
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1 percentile of overall production compared to the normal good average worker; that person
2 would not be competitive.” AR 138. The ALJ followed up:
3 How about if our individual say would be absent from the workplace or
worksite say at a rate of three to four days per month also on a consistent basis.
4
Would that also be a work preclusive situation as well?
5
AR 139. Ms. Ayerza responded, “because if someone is absent more than 16 hours per
6
month, full days or partial days, that person would not be competitive.” AR 139. Plaintiff’s
7
counsel then asked a follow up question:
8
Is if the individual is not able to or unable to deal with the public, superficial
9
contact with supervisors and coworkers, would those receptionist and
10 information clerk type jobs still be able to be performed?
11
AR 139. Ms. Ayerza responded, “no.” AR 140.
12
Plaintiff contends that, while “the ALJ found [Plaintiff] has ‘moderate’ limitations
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in concentration, persistence, or pace, … the accepted hypothetical question to the
14
[vocational expert] relied on by the ALJ only limited [Plaintiff] mentally to unskilled work”
15
and “did not impose any limitations on [Plaintiff]’s ability to concentrate, persist at tasks,
16
nor maintain a regular pace.” ECF No. 15 at 45–46. Because the “vocational expert testified
17
that if an individual was off task for 25 percent of the workday on a consistent basis, she
18
could not sustain fulltime competitive employment,” Plaintiff argues that, had Plaintiff’s
19
ability to concentrate, persist, and maintain a regular work pace been included in the
20
hypothetical, she would have been found to be disabled. Id. at 47. Plaintiff further argues
21
that, “[b]ecause the ALJ did not refer to any evidence to support his conclusion that
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[Plaintiff]’s moderate limitations in concentration, persistence, or pace only limit h[er] to
23
unskilled work, remand is required.” Id. at 52.
24
Defendant interprets Plaintiff’s argument as a challenge to the RFC, and contends
25
that the ALJ’s evaluation process of Plaintiff’s mental limitations is different from “the
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question of what the claimant can still do despite those limitations—i.e., the claimant’s
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RFC.” Id. at 48. Defendant argues that the ALJ’s explanation that the “limitations identified
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1 in the ‘paragraph B’ criteria are not a residual functional capacity assessment but are used
2 to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation
3 process.” Id. at 48. Further, Defendant contends that, “even though the majority of the
4 medical opinions found that Plaintiff had no severe mental impairment and the record
5 documents unremarkable mental status examination findings, the ALJ nonetheless limited
6 Plaintiff to unskilled tasks because the record established that she received treatment for
7 depression.” Id. at 49. Thus, Defendant argues that the hypothetical posed to the vocational
8 expert was proper. Id. at 51.
9 1. Relevant Cases
10 The parties cite Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)
11 and Brink v. Comm’r, 343 F. App’x 211, 212 (9th Cir. 2009) for their respective positions.
12 In Stubbs-Danielson, the Ninth Circuit held that “an ALJ’s assessment of a claimant
13 adequately captures restrictions related to concentration, persistence, or pace where the
14 assessment is consistent with restrictions identified in the medical testimony … [such as
15 when an] ALJ’s hypothetical describing an ability to do ‘simple, routine, repetitive work’
16 [does not explicitly list] deficiencies in concentration, persistence, or pace.” 539 F.3d at
17 1174. In Brink, the Ninth Circuit noted that “simple, repetitive work” and “work requiring
18 concentration, persistence, or pace” were not interchangeable in a hypothetical question,
19 because “repetitive, assembly-line work … might well require extensive focus or speed.”
20 343 F. App’x at 212.
21 The Court finds Stubbs-Danielson more analogous to the instant case. Other “district
22 courts have [also] extended Stubbs-Danielson’s reasoning to cases in which the ALJ did
23 find moderate restrictions in concentration, persistence, or pace while employing, at step
24 two, the ‘special psychiatric review technique’ described in 20 C.F.R. §§ 404.1520a and
25 404.916a, but assessed an RFC only restricting the plaintiff to simple, routine tasks.”
26 Jennifer E. C. v. Kijakazi, No. EDCV-20-1815-PLA, 2021 U.S. Dist. LEXIS 226219, at
27 *18–*19 (C.D. Cal. Nov. 23, 2021) (collecting cases); see, e.g., Phillips v. Colvin, 61 F.
28 Supp. 3d 925, 940 (N.D. Cal. 2014) (agreeing with Commissioner “that the ALJ’s [RFC]
1 ‘limitation to simple routine 1-2 step unskilled tasks’ sufficiently addresses [claimant’s]
2 moderate limitation in concentration, persistence, or pace.”); see also Wilder v. Comm’r of
3 Soc. Sec. Admin., 545 F. App’x 638, 639 (9th Cir. 2013) (ALJ did not err by failing to
4 include the step two finding that plaintiff had moderate difficulties in maintaining
5 concentration, persistence, or pace in his RFC because “the medical evidence in this record
6 does not support any work-related limitation in [plaintiff’s] ability to sustain concentration,
7 persistence or pace”).
8 2. Discussion
9 Here, the Court agrees with Defendant that “the ALJ properly translated Plaintiff’s
10 moderate difficulties with maintaining concentration, persistence, or pace, into an RFC for
11 unskilled tasks.” ECF No. 15 at 49. Plaintiff had inconsistent mental status examination
12 findings, but the ALJ denoted a mild limitation in “understanding, remembering or
13 applying information,” a mild limitation in “interacting with others,” and a moderate
14 limitation in “concentrating, persisting, or maintaining pace,” and nonetheless limited
15 Plaintiff to unskilled tasks. AR 28; see, e.g., Lee v. Berryhill, 721 F. App’x 604, 608 (9th
16 Cir. 2017) (“[T]he ALJ accounted for his finding that [plaintiff] had moderate difficulties
17 in concentration, persistence, or pace by limiting [plaintiff] to ‘simple repetitive tasks’
18 because this limitation accorded with the restrictions discussed in the medical record.”).
19 The ALJ’s hypothetical questions were proper and do not provide grounds for remand.
20 VI. CONCLUSION AND RECOMMENDATION
21 The Court submits this Report and Recommendation to United States District Judge
22 Gonzalo P. Curiel under 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c)(1)(a) of the
23 United States District Court for the Southern District of California. For the reasons set forth
24 above, IT IS HEREBY RECOMMENDED that the District Judge issue an Order:
25 (1) approving and adopting this Report and Recommendation, and (2) AFFIRMING the
26 Commissioner’s decision. ECF No. 15; AR 23–38.
27 IT IS HEREBY ORDERED that any party to this action may file written objections
28 with the Court and serve a copy on all parties no later than March 2, 2022. The document
1 should be captioned “Objections to Report and Recommendation.”
2 IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with
3 Court and served on all parties no later than March 9, 2022.
4
5 IT IS SO ORDERED.
6 Dated: February 16, 2022
JpwornH. Xho
Honorable Allison H. Goddard
8 United States Magistrate Judge
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