# Kahue v. Andrew Saul, Commissioner, Social Security Administration

> District Court, D. Oregon · August 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10396399

## Case

- **Court:** District Court, D. Oregon
- **Decided:** August 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10396399

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DARREN K.,! No, 3:21-cv-435-MO
Plaintiff, OPINION & ORDER
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

MOSMAN, District Judge:
This matter comes before me on Plaintiff Darren K,’s Complaint [ECF 1] against
Defendant Commissioner of the Social Security Administration. For the reasons given below, I
AFFIRM the Commissioner’s decision and DISMISS this case.

' In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the nongovernmental party in this case.

OROTRTTORAT OADMmGUD

PROCEDURAL BACKGROUND
On March 25, 2018, Plaintiff applied for Disability Insurance Benefits (“DIB”) under
Title I of the Social Security Act, alleging disability beginning February 10, 2018. Tr. 158. The
Social Security Administration (“SSA”) denied his claim initially and upon reconsideration. Tr.
43, 60. Plaintiff appeared before Administrative Law Judge (‘ALJ’) Vadim Mozyrsky on June
24, 2020, Tr. 32-42. On August 12, 2020, the ALJ issued a decision denying Plaintiff's claims
for benefits. Tr. 14-31. Plaintiff filed an appeal, and the Appeals Council denied review. Tr. 1-6.
THE ALJ’S FINDINGS
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the alleged onset date, February 10, 2018. Tr. 19. At step two, the ALJ determined that
Plaintiff had the following severe impairments: status post right basal ganglia hemorrhage, left
hemiparesis, neurocognitive disorder, adjustment disorder with depression and anxiety. Tr. 19.
At step three, the ALJ found no impairment that met or equaled the severity of any impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 20. The ALJ assessed Plaintiff's residual
functional capacity (“RFC”), as follows:
to perform sedentary work as defined in 20 CFR 416.967(a) except pushing and
pulling with the left upper extremity is limited to the occasional level;
occasionally climbing ramps and stairs, never climbing ladders and scaffolds;
occasional balancing, stooping, kneeling, crouching, crawling; occasional
overhead reaching with the left upper extremity, frequent handling, fingering and
feeling with the left upper extremity; no concentrated exposure to hazards such as
unprotected heights working around moving mechanical parts, or operating a
motor vehicle as a job requirement; simple repetitive tasks, and no tasks requiring
public contact.
Tr. 21-22.
At step four, the ALJ determined that Plaintiff was unable to perform any past relevant
work. Tr. 25. At step five, the ALJ found that Plaintiff retained the ability to perform other jobs

92—OPINION & ORDER

in the national economy, such as semi-conductor loader, circuit board taper, and semi-conductor
bonder. Tr. 26. The ALJ therefore found Plaintiff not disabled, Tr. 27.
LEGAL STANDARD
Courts must uphoid the ALJ’s decision if it “was supported by substantial evidence and
based on proper legal standards.” Lewis v, Astrue, 498 F.3d 909, 911 (9th Cir, 2007). Substantial
evidence is “more than a mere scintilla,” and means only “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct, 1148,
1150 (2019) (internal quotation marks omitted), When “evidence is susceptible of more than one
rational interpretation ... the ALJ’s conclusion ... must be upheld.” Burch v. Barnhart, 400 F.3d
676, 679 (9th Cir, 2005). Errors in the ALJ’s decision do not warrant reversal if they are
harmless. Sfout vy. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
DISCUSSION
Plaintiff raises one issue with the ALJ’s decision. He contends that the ALJ improperly
weighed the medical evidence, resulting in a flawed RFC concerning the limitations on his left
arm and hand.
1, Medical Opinion Evidence
For claims filed after March 27, 2017, ALJs are no longer required to give deference to
any medical opinion, including treating source opinions. Rules Regarding the Evaluation of
Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan, 18, 2017); 20 C.F.R. §§
404,1520c, 416,920c, Instead, the agency considers several factors. 20 C.F.R. §§ 404.1520e(a),
416.920c(a). These are: supportability, consistency, relationship to the claimant, specialization,
and “other factors.” 20 C.F.R. §§ 404,1520c(c)(1)}-(5), 416.920c(c}{1)}-(5), The “most important”

factors in the evaluation process are supportability and consistency, 20 C.F.R. $§
1520c(b)(2), 416.920e(b)(2).
Under this framework, the ALJ must “articulate .. . how persuasive [they] find all of the
medical opinions” from each doctor or other source. 20 C.F.R. §§ 404.1520c(b), 416.920c(b)}(2).
In doing so, the ALJ is required to explain how supportability and consistency were considered
and may explain how the other factors were considered, 20 C.F.R §§ 404.1520c(b)(2),
416.920c(b)(2). When two or more medical opinions or prior administrative findings “about the
same issue are both equally well-supported ... and consistent with the record .. . but are not
exactly the same,” the ALJ is required to explain how the other factors were considered. 20
C.F.R. §§ 404.1520e(b)(3), 416.920c(b)(3). “Even under the new regulations, an ALJ cannot
reject an examining or treating doctor’s opinion as unsupported or inconsistent without providing
an explanation supported by substantial evidence.” Woods v, Kijakazi, 32 F.4th 785, 792 (9th
Cir, 2022).
State agency medical consultants Dr, Peter Bernardo and Dr. William Nisbet wrote that
Plaintiff could work at the sedentary exertional level with postural and environmental limitations
and with only occasional overhead reaching, handling, fingering, and feeling on the left side. Tr.
25, 53-55, 71-74. Dr. Bernardo further noted that Plaintiff had not seen a neurologist for
evaluation after late 2018. Tr. 25, 49-50, Dr, Nisbet noted that Plaintiff stopped attending
physical therapy in 2018. Tr. 68, 379-80, 421. The ALJ found Dr. Bernardo’s and Dr. Nisbet’s
opinions somewhat persuasive and incorporated nearly all the limitations into the residual
functional capacity, Tr. 21, 25, The ALJ did not, however, adopt the manipulative limitations to
only occasional handling, fingering, and feeling on the left side, which would have limited
Plaintiff to performing these activities only one-third of the workday. Tr. 25; see also Social

UompmRoA.T oOAnDnGD

Security Ruling (SSR) 83-10, 1983 WL 31251, at *5 (“Occasionally’ means occurring from
very little up to one-third of the time.”). Instead, the ALJ limited Plaintiff to frequent handling,
fingering, and feeling, finding that Plaintiff could perform these activities up to two-thirds of the
workday. Tr. 25; see also SSR 83-10, at *6 (“‘Frequent’ means occurring from one-third to two-
thirds of the time.”).
First, the ALJ sufficiently evaluated the supportability of Dr. Bernardo’s and Dr, Nisbet’s
occasional handling opinions by concluding there was a lack of record evidence to back their
opinions up. The supportability factor requires the ALJ to evaluate the relevant objective medical
evidence—that is, clinical signs and diagnostic findings, see 20 C.F.R. §§ 404.1502(c), (f), (g)—
and the supporting explanations a medical source provides for their opinions. 20 C.F.R. §
404.1520c(c)(1). “An ALJ is not required to take medical opinions at face value, but may take
into account the quality of the explanation” when evaluating a medical opinion, Ford v. Saul,
950 F.3d 1141, 1155 (9th Cir. 2020). The ALJ concluded these opinions about Plaintiff's left
hand limitations were not supportable because Plaintiff “exhibited only mild weakness in his grip
strength by mid-2018,” Tr, 25, 325-26, The ALJ also noted that Plaintiff could do several
different types of manipulative exercises during PT sessions, such as four sets of ten repetitions
with a hand gripper, set at 55 pounds. Tr. 338. And records from mid-2018 show that Plaintiff
was independent in most activities of daily living, like eating, grooming, and dressing, Tr. 264.
The ALJ acknowledged that Plaintiffs left hand grip was significantly weaker than his right
hand, see, e.g., Tr. 264, but reasonably concluded that Plaintiff could manipulate objects with his
left hand and fingers for up to two thirds of the work day, based on the lack of supportability of
Dr, Bernardo’s and Dr. Nisbet’s opinions that he could only do so for half as long. Because the

ALJ adequately evaluated the medical evidence underlying these medical opinions, the decision
to give them little weight is supported by substantial evidence, 20 C.F.R. §§ 404.1502c.
The ALJ also reasonably considered that Dr. Bernardo’s and Dr. Nisbet’s opinions
limiting Plaintiff to occasional handling with his left hand were inconsistent with other record
evidence. An opinion’s persuasiveness is in relation to Its consistency with evidence from other
sources, 20 C.F.R, §§ 404,1520c(c)(2), 416.920c(c}(2); Woods, 32 ¥ 4th at 792. Specifically, the
ALJ focused on the fact that Plaintiff did not seek any medical treatment for his left hand at all
after January 2019, almost a year and a half before his administrative hearing in June 2020. Tr.
23, 32, 397-407. The ALJ also noted that at physical therapy appointments in the fall of 2018,
Plaintiff's providers found he had “good potential to achieve established goals to address the
documented impairments by participating in skilled physical therapy.” Tr. 333. But Plaintiff
stopped going to PT, and claims—-based on his own conclusions—that there was no treatment
availabie to improve his left hand symptoms. PI. Br., ECF No. 16 at 10-11, Pl. Reply, ECF No.
21 at 3. The ALJ reasonably concluded that Dr. Bernardo’s and Dr. Nisbet’s occasional handling
opinions conflicted with the PT records reflecting improvement in strength and coordination in
Plaintiff's left hand, and with the lack of record evidence of medical care after January 2019.
See, e.g., Tr. 326. The ALJ rationally concluded the PT notes showing “good potential” for
improvement, combined with Plaintiff's failure to attend further PT appointments in 2019 and
2020 conflicted with an “occasional” limitation suggested by Dr. Bernardo and Dr. Nisbet. The
ALJ sufficiently analyzed the relevant evidence’ under the consistency factor as well, and that
the decision to find these opinions unpersuasive was supported by substantial evidence.

* Plaintiff also argues the ALJ failed to address two other pieces of the medical record
that support Dr. Bernardo’s and Dr. Nisbet’s occasional handling limitation. See Pl. Br., ECF No.
16 at 9-10. Plaintiff first cites the physical therapy notes—with the ALJ did in fact consider—

Plaintiff also argues it was error for the ALJ to find Dr. Bernardo’s and Dr, Nisbet’s
occasional handling opinions unpersuasive and substitute the “frequent” handling limitation into
the RFC without another, conflicting medical opinion to contradict them. But Plaintiff
misunderstands the ALJ’s role. “The ALJ is responsible for translating and incorporating clinical
findings into a succinct RFC.” Rounds v. Comm’r Social Sec. Admin, , 807 F.3d 996, 1006 (9th
Cir, 2015). The final RFC is not a medical issue dependent on a doctor’s opinion; it is an
administrative finding of fact based on evidence in the entire record, 20 C.F.R. § 416.946(c);
SSR 96-5p, available at 1996 WL 374183, at *5. The residual functional capacity finding can
derive from reports of daily activities, lay evidence, medical source statements, the effects of
treatment, recorded observations, and other evidence, SSR 96-8p, available at 1996 WL 374184,
at *5. Thus, the issue is whether, based on the entire record, the ALJ adequately accounted for
Plaintiff's limitations in the residual functional capacity, not whether there was a specific
medical opinion underlying every limitation in the RFC. Here, in addition to the medical

and argues they support the occasional handling limitation because they show “severely impaired
sensation” in Plaintiffs left hand. /d. (citing Tr. 326), These same records show improvement,
gtoss dexterity and fine motor coordination (FMC), that was “slower than expected,” but had
“good potential” to improve if Plaintiff had kept attending PT, Tr. 326, 333. Plaintiff did not do
so, and the Court reasonably concluded the resulting lack of records from January 2019-on
conflicted with the limitations Drs. Bernardo and Nisbet imposed.
Plaintiff also argued the ALJ “ignored the observations by Dr. Grief that Plaintiff's left
arm was obviously limited to no more than the role of an assist. Tr. 384. According to Plaintiff,
the ALJ failed to explain how the opinions of Drs. Bernardo and Nisbet are inconsistent or not
supported by these observations, Pl. Br. at 10. But again, the ALJ considered and accounted for
Dr, Grief’s notes regarding Plaintiffs left arm, Tr. 23. The ALJ specifically acknowledged that
Plaintiff still had weakness on his left side in November 2018 during his meeting with Dr. Grief.
Tr, 23, 384. And as noted above, the residual functional capacity reflected this weakness as well
as the ALJ’s other considerations that included Plaintiff's lack of treatment after January 2019,
his activities of daily living, and his work for several months in 2019.
Because the ALJ considered both pieces of evidence Plaintiff argues he left out, and
simply interpreted them differently than Plaintiff, the Court finds no error here either.

assessments, the ALJ considered Plaintiff's treatment records, his improvement, his lack of
additional treatment, his activities of daily living, and his work for several months in 2019 of
which Drs. Bernardo and Nisbet had no knowledge. Tr. 21-25. The ALJ had sufficient evidence
regarding Plaintiffs abilities, as summarized in the decision and supported by the record. Tr. □□□□
25, As noted above, substantial evidence supports the ALI’s conclusion that Plaintiff could
perform a reduced range of sedentary work that included frequent handling, fingering and feeling
with the left upper extremity, and Plaintiff has identified no other error in the RFC,
CONCLUSION
For the reasons given above, |] AFFIRM the Commissioner’s decision and DISMISS this
case,
IT IS SO ORDERED.
DATED: 2 / SO, 23 .

MICHAEL W. MQ@SMAN
United States Digtrict Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396399. Public record. Not legal advice.