# Greaves v. Commissioner Social Security Administration

> District Court, D. Oregon · October 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10396617

## Case

- **Court:** District Court, D. Oregon
- **Decided:** October 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10396617

## How later opinions describe it (automated extraction)

- noting that a “claimant need not vegetate in a dark room in order to be eligible for benefits” (quotation marks omitted)
- stating remand is appropriate where “additional proceedings can remedy defects in the original administrative proceeding”
- holding ALJ may not discount claimant’s testimony solely because it is not substantiated by objective medical evidence

## Opinion text

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

KELLIE G., Ca se No. 2:21-cv-01879-AR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

Defendant.
_____________________________________

ARMISTEAD, Magistrate Judge

In this judicial review of the Commissioner’s final decision denying Social Security
benefits, plaintiff Kellie G. (her last name omitted for privacy) challenges the Administrative
Law Judge’s evaluation finding that fibromyalgia is not a severe condition, failing to identify
specific, clear and convincing reasons for discounting her subjective symptom testimony, and

Page 1 – OPINION AND ORDER
finding the medical opinion of Dr. Megan Blunda, M.D., unpersuasive. The court agrees in part
with plaintiff and, therefore, the Commissioner’s decision is REVERSED and REMANDED.1
ALJ’S DECISION
Plaintiff applied for Title II Disability Insurance Benefits (DIB) on December 3, 2018,
alleging disability beginning July 1, 2015. (Tr. 274.) Plaintiff also applied for Title XVI Social
Security Income (SSI) on December 3, 2018, alleging disability beginning July 2, 2015. (Tr. 276.)
Her claims were initially denied on April 22, 2019, and again upon reconsideration on February
12, 2020. (Tr. 103, 127, 149, 169.) Afterwards, plaintiff sought a hearing, which was held before
the ALJ on January 13, 2021. (Tr. 40.)

In denying plaintiff’s applications for DIB and SSI, the ALJ followed the five-step
sequential evaluation process.2 At step one, the ALJ determined plaintiff has not engaged in
substantial gainful activity since September 22, 2015, the amended alleged onset date. (Tr. 18.)
At step two, the ALJ determined that she had the following severe impairments: degenerative
disc disease, dysfunction of major joints, reconstructive surgery of weight bearing joints, and
depression with anxious distress. (Tr. 18.) At step three, the ALJ determined that her
impairments singly or in combination did not meet or medically equal the severity of any listed
impairment. (Tr. 20.)

1 This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3), and all parties have
consented to jurisdiction by magistrate judge under Federal Rule of Civil Procedure 73 and 28
U.S.C. § 636(c).

2 To determine a claimant’s disability, the ALJ must apply a five-step evaluation. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ finds that a claimant is either disabled or not
disabled at any step, the ALJ does not continue to the next step. Id.; see also Parra v. Astrue, 481
F.3d 742, 746–47 (9th Cir. 2007) (discussing the five-step evaluation in detail).

Page 2 – OPINION AND ORDER
The ALJ determined that plaintiff has the residual functional capacity (RFC),
20 C.F.R. §§ 404.1545, 416.945, to perform light work with the following limitations: lift or
carry up to 20 pounds frequently and 25 pounds occasionally; can stand or walk with normal
breaks for a total of more than six hours in an eight-hour workday; can sit with normal breaks for
a total of more than six hours in an eight-hour workday; can perform pushing and pulling
motions with upper and lower extremities within the weight restrictions above; is limited to work
with routine repetitive tasks and simple decision-making; is limited to work with no more than
occasional interaction and close proximity to coworkers or supervisors; and should only be
minimally in direct contact with the general public. (Tr. 22.)

At step four, the ALJ determined that plaintiff cannot perform her past relevant work as a
caregiver or a bank teller. (Tr. 31.) With the RFC in hand, the ALJ found at step five that jobs
exist in significant numbers in the national economy that plaintiff can perform, including such
representative occupations as mail clerk, electronics worker, and assembler. (Tr. 32.)
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Substantial evidence is
“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation

and citation omitted). To determine whether substantial evidence exists, the court must weigh all
the evidence, whether it supports or detracts from the Commissioner’s decision. Garrison v.
Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).

Page 3 – OPINION AND ORDER
DISCUSSION
A. Step Two – Whether Plaintiff’s Fibromyalgia is Severe
At step two, a claimant is not disabled if the claimant does not have any medically severe
impairments. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); 20 C.F.R.
§ 404.1520(a)(4)(ii). An impairment is severe if it “significantly limits” a claimant’s “physical or
mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521(a). An impairment is not
severe “when [the] medical evidence establishes only a slight abnormality or combination of
slight abnormalities which would have no more than a minimal effect on an individual’s ability
to work.” Social Security Ruling (SSR) 85-28, available at 1985 WL 56856, at *3. Even if an

impairment is not severe, the ALJ must still consider its limiting effect when formulating the
claimant’s RFC. Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014).
The ALJ found that plaintiff had multiple severe impairments at step two but concluded
that her fibromyalgia was “not severe.” (Tr. 18.) As support for that conclusion, the ALJ
referenced a single medical note that described the condition as stable, that there were no other
objectively observed signs, and that her grip strength and fine motor skills were normal. (Tr. 18,
citing Tr. 568, 949-50.) Plaintiff argues that the ALJ impermissibly assessed her fibromyalgia as
non-severe on the basis that it eluded objective measurement. (Pl.’s Br. 5, ECF 19.) In plaintiff’s
view, this finding also was prejudicial because it negatively affected the ALJ’s assessment of her
subjective symptom testimony and the ALJ failed to consider her fibromyalgia symptoms when

formulating her RFC as required under SSR 12-2p, available at 2012 WL 3104869, at 6. The
Commissioner asserts that any step two error was harmless because (1) the ALJ continued the
sequential analysis, and (2) plaintiff does not identify any credited limitations due to her

Page 4 – OPINION AND ORDER
fibromyalgia that warrant a different outcome at step three or a different RFC finding. (Def.’s Br.
3, ECF 22.) The Commissioner’s step two argument is correct.
“Step two is merely a threshold determination meant to screen out weak claims.” Buck v.
Berryhill, 869 F.3d 1040, 1048 (citing Bowen v. Yuckert, 482 U.S. 137, 146-47, 107 S.Ct. 2287,
96 L.Ed.2d 119 (1987)). Whether fibromyalgia is designated as a severe or non-severe
impairment, the ALJ must consider limitations and restrictions imposed by all of an individual’s
impairments when formulating the RFC. SSR 96-8p. As the Commissioner correctly contends,
step two was resolved in plaintiff’s favor because the ALJ continued with the sequential analysis
and any error at step two was harmless. Buck, 869 F.3d at 1049 (describing step two errors as

harmless if an ALJ decides it in claimant’s favor).
To the extent that plaintiff contends the ALJ erred in assessing her subjective symptom
testimony and failed to consider her fibromyalgia symptoms consistent with SSR 12-2p when
formulating her RFC, the court addresses those arguments below.
B. Basis for Discounting Plaintiff’s Testimony

Determining the credibility of a claimant’s testimony regarding subjective reports of pain
or symptoms requires the ALJ to undertake a two-step process of analysis. Trevizo v. Berryhill,
871 F.3d 664, 678 (9th Cir. 2017). In the first stage, the claimant must produce objective medical
evidence of an underlying impairment that could reasonably be expected to produce the alleged
symptoms. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014);
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, if there is no
affirmative evidence of malingering, the ALJ must provide specific, clear and convincing
reasons for discounting the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 488-89

Page 5 – OPINION AND ORDER
(9th Cir. 2015); 20 C.F.R. § 416.929. The specific, clear and convincing standard is “the most
demanding required in Social Security cases” and is “not an easy requirement to meet.”
Garrison, 759 F.3d at 1015; Trevizo v. Berryhill, 871 F.3d 664, 678-79 (9th Cir. 2017).
Plaintiff contends that she cannot engage in full-time, competitive employment because
of her physical and mental health conditions, including fibromyalgia, arthritis, foot, back, and hip
surgeries, bulging discs, craniectomy, Chiari Malformations, and depression, anxiety, and lack of
concentration. (Tr. 308.) Due to the pain she experiences in her neck and back, plaintiff alleges
that some days she cannot reach her feet, bathe properly, bend her neck, lie on her back or her
right side, look up or down for more than five to ten minutes, or stand for any length of time. (Tr.

322-23.) Plaintiff also alleges that she has a difficult time with anything more than basic
instructions, and that she no longer handles stress well, sometimes resulting in a “meltdown”
leaving her bedridden with a migraine. (Tr. 327.) Plaintiff also reported using a cane whenever
she feels “unsteady,” and has been using it since her hip replacement surgery in 2016. (Tr. 327.)
In order to manage her conditions, plaintiff has been taking Lexapro, Indomethacin, Clonidine,
Buspirone, Xanax, Tyzanadine, Oxycodone, Butal/Acetaminophen, and Albuterol. (Tr. 341.)
At the hearing, plaintiff reported that she uses paper plates in order to keep dishes to a
minimum because she cannot stand for more than ten minutes before having to sit down to let
her back relax. (Tr. 58-59.) She also reported using a cane on and off for the previous four years,
and steadily for the past year. (Tr. 59.) She further testified that she cannot work full-time

because her back would be “on fire” within a couple of hours. (Tr. 59.) Because of the pain in
her back, she reclines four or more hours a day to relieve the pressure. (Tr. 59-60.) She then
testified that, because of the arthritis in her hands, she often drops things. (Tr. 60.)

Page 6 – OPINION AND ORDER
When asked about her mental health conditions, plaintiff testified that she has anxiety and
does not deal well with the public or large groups. (Tr. 61.) She explained that her anxiety makes
her cry and shake, gives her panic attacks, that it began in 2015, and has since worsened. (Tr.
61.) Following the death of her father in 2018, her condition began to significantly affect her
day-to-day life. (Tr. 61-62.) She also testified that she has depression and an inability to handle
changes in plans. (Tr. 62.) When asked how she deals with change, she testified that she cries
through changes, and has never been good with change. (Tr. 62.) Plaintiff testified that, although
she can handle basic, one- and two-step instructions, she would have difficulty with more
complex instructions. (Tr. 62.) She stated that she does not handle stress well, and that she gets

easily overwhelmed. (Tr. 62-63.) When dealing with stress stemming from conflicts with others,
she testified that she usually breaks down, cries, and yells, a condition that she has had for ten
years. (Tr. 63.) Plaintiff expressed that crowds overwhelm her. (Tr. 63.) Plaintiff said that she
cannot concentrate on a task for more than 30 minutes because she gets bored; that she sets
medication reminders on her phone, and that her daughter-in-law also reminds her to take her
medication. (Tr. 64.) On bad mental health days, occurring three or four times a month, she is
unable to get dressed, comb her hair, and cannot have anything touching her skin. (Tr. 65.)
Lastly, she testified that she cannot lift a gallon of milk, that she does not sleep well, and
experiences fatigue. (Tr. 66-67.)
The ALJ discounted plaintiff’s subjective symptom testimony because: (1) her level of

activity was inconsistent with her allegations; (2) her mental health conditions improved with
treatment; and (3) her statements were inconsistent with her medical records. Plaintiff challenges
that assessment.

Page 7 – OPINION AND ORDER
1. Daily Activities
An ALJ may rely on daily living activities as a basis for discounting subjective symptoms
if the claimant’s activities contradict her testimony or meet the threshold for transferable work
skills. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); Orn v. Astrue, 495 F.3d 625,
639 (9th Cir. 2007). For daily activities to discount subjective symptom testimony, the activities
need not be equivalent to full-time work; it is enough that the claimant’s activities “contradict
claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. Claimants do not,
however, need to be utterly incapacitated to receive disability benefits, and an ability to complete
certain routine activities is insufficient to discount subjective symptom testimony. See id. at

1112-13 (noting that a “claimant need not vegetate in a dark room in order to be eligible for
benefits” (quotation marks omitted)).
The ALJ discounted plaintiff’s subjective symptom testimony because she drives,
prepares her own meals, takes care of her dogs and cat, shops in stores, does not have problems
getting along with others, plays board games and watches television, does her own laundry, and
her grandchildren stay the night with her. (Tr. 22-23.) The ALJ also found that plaintiff does not
have problems getting along with others because she sees her family regularly, relying on
plaintiff’s report that she Facetimed with her children and grandchildren during the week. (Tr.
22-23, citing Tr. 325.)
The ALJ’s conclusions, however, do not take into account the limitations plaintiff

testified to with regard to her daily activities. To begin with, although plaintiff does help take
care of her pets, her testimony explains that that help entails letting her dogs in and out of the
house and feeding them, and that her partner helps. (Tr. 322.) Further, engaging with family does

Page 8 – OPINION AND ORDER
not undermine her testimony that she has difficulty dealing with the general public and large
crowds. (Tr. 61.) It is also important to note that, although plaintiff’s grandchildren have stayed
overnight with her, it was less than twice a month, only one grandchild at a time, and that they
are more of a help to her than she is to them. (Tr. 50.) When it comes to chores, plaintiff testified
that she cannot do laundry without pain, often crying, and compensates by doing small loads,
which takes longer. (Tr. 328.)
Additionally, the ALJ did not find that plaintiff spent a “substantial” portion of her day
engaged in household chores or that these activities are transferrable to a work environment.
Ghanim v. Colmin, 763 F.3d 1154, at 1165; Holohan v. Massanari, 246 F.3d 1195, 1208 (9th

Cir. 2001) (“[T]he ALJ must specifically identify the testimony she or he finds not to be credible
and must explain what evidence undermines the testimony.”). Because the ALJ did not connect
these activities to any symptom or the degree of any symptom alleged by plaintiff, this reason
fails to provide a specific, clear and convincing basis upon which to discount her subjective
symptom testimony. See Felicia F. P. v. Comm’r Soc. Sec. Admin., Case No. 3:21-cv-00889-AR,
2023 WL 1991530, at *3 (D. Or. Feb. 14, 2023).
Here, the ALJ failed to explain how plaintiff’s ability to perform daily activities
described by her undermines plaintiff’s testimony, and when the entire record is considered, the
ALJ’s conclusion is not supported by substantial evidence.
2. Treatment

An ALJ may discount a claimant’s mental health-related symptom testimony because she
improved with treatment. Niemi v. Saul, 829 F. App'x 831, 832-33 (9th Cir. 2020) (holding that
the ALJ did not err in discounting the claimant’s symptom testimony and noting that the ALJ

Page 9 – OPINION AND ORDER
observed that the claimant’s “mental health challenges appeared to improve with counseling and
medication”). However, discounting a claimant’s mental health related symptom testimony based
on evidence of improvement may still result in harmful error. The Ninth Circuit cautions that
when “discussing mental health issues, it is error to reject a claimant’s testimony merely because
symptoms wax and wane in the course of treatment.” Garrison, 759 F.3d at 1017. “Cycles of
improvement and debilitating symptoms are a common occurrence, and in such circumstances, it
is error for an ALJ to pick out a few isolated instances of improvement over a period of months
or years and to treat them as a basis for concluding a claimant is capable of working.” Id. (citing
Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)).

Here, the ALJ relied in part on reports of the plaintiff’s symptoms improving over time.
(Tr. 23-29.) In the decision, the ALJ noted instances of plaintiff’s progress and noncompliance,
such as when she was medication noncompliant from July to September 2016, when she reported
doing better in March 2017, when she declined a change in her depression medication in
November 2018, and when plaintiff reported her treatment was helpful and she appeared alert,
oriented, presented appropriately, and that her insight and judgment were intact in March and
May of 2019. (Tr. 23-27, citing Tr. 430, 437, 568, 956, 968.) The ALJ also relied on reports from
February, March, and May 2020 where plaintiff was again alert, oriented, presenting
appropriately with intact insight and judgment, and reportedly doing well on medication. (Tr. 27-
28, citing Tr. 1712, 1723, 1748.) Based on those instances of improvement, the ALJ concluded

plaintiff’s “statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in the
record.” (Tr. 28.)

Page 10 – OPINION AND ORDER
This court’s review of the record shows that the ALJ’s finding is supported by substantial
evidence. Plaintiff’s mental health records before she began engaging in therapy at the end of
December 2019 are sparse. Although plaintiff testified to suffering from depression and anxiety
since 2015, plaintiff also testified that her mental health only started to significantly affect her
day-to-day life in 2018. (Tr. 61.) From July to September in 2016, plaintiff was medication
noncompliant for two months without explanation. (Tr. 437.) At her December 2016 checkup,
after she had resumed taking medication in September, she increased her dosage of Buspar. (Tr.
436.) The ALJ also noted that plaintiff declined a medication change in November 2018. (Tr. 25,
citing Tr. 568.) However, plaintiff declined the change for “right now,” and considered changing

it in the future. (Tr. 568.) A follow-up appointment in January 2018 showed that plaintiff
complained of worsening depression, that Lexapro was no longer effective, and that she
presented as depressed and tearful. (Tr. 563.) Although plaintiff stated that she felt better on
Zoloft in March 2019, she also said that she was depressed most of the day almost every day for
over a year and experienced insomnia, fatigue, anxiety, and had recently experienced a panic
attack. (Tr. 956.) Two months later, in May, plaintiff complained of worsening anxiety and
increased her Zoloft dosage. (Tr. 965.) Plaintiff was given a referral to therapy in June 2019, but
did not begin seeing a therapist until December 2019. (Tr. 971, 1682.) From February to May
2020, plaintiff reported doing well on medication, making marked improvements in her
depression and anxiety, and no longer experiencing consistent symptoms of depression. (Tr.

1730, 1734, 1736, 1741, 1744, 1748, 1751.) Although plaintiff did suffer setbacks due to going
off medication and treatment from June to August due to issues related to her physical health,

Page 11 – OPINION AND ORDER
once she resumed treatment, she started slowly improving again through December. (Tr. 1763,
1767, 1785, 1791, 1794.)
The ALJ’s findings are supported by substantial evidence and are a reasonable
interpretation of the record; the ALJ appropriately discounted her subjective symptom testimony
on this basis.
3. Inconsistent Statements
The ALJ discounted plaintiff’s subjective symptom testimony based on alleged
inconsistencies with the medical record. Inconsistency with the medical record can provide a
clear and convincing basis for discounting a claimant’s symptoms, so long as it is not the sole

reason for doing so. Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
The ALJ discounted plaintiff’s subjective symptom testimony based on her reports of
needing to use a cane. (Tr. 28.) According to plaintiff’s function report from 2018, she has used a
cane since her hip replacement surgery in 2016, but only when she feels “unsteady.” (Tr. 327.)
At the 2021 hearing, plaintiff testified that she had been using a cane on and off for about four
years, and steadily for the past year. (Tr. 59.) She said that she does not use it in her home
because she can lean on other things. (Tr. 59.) The ALJ discounted plaintiff’s testimony because
the cane is not medically necessary, was used for a short time, and she could ambulate fully
without it. (Tr. 28, citing Tr. 949, 1077.) The ALJ’s reasoning, however, is not fully supported.
Plaintiff testified she has been using a cane on and off since 2016 and steadily throughout 2020,

and the ALJ relied only on two reports from 2019. (Tr. 949, 1077.) Thus, the ALJ’s reasoning is
not backed by substantial evidence and the ALJ erred in relying on this reason to discount
plaintiff’s testimony.

Page 12 – OPINION AND ORDER
4. Fibromyalgia
As noted above, the ALJ found that plaintiff’s fibromyalgia was not severe at step two.
As plaintiff correctly contends, under SSR 12-2p, the ALJ is required to consider her
fibromyalgia-related symptoms when assessing her RFC. See Revels v. Berryhill, 874 F.3d 648,
662 (9th Cir. 2017) (“In evaluating whether a claimant’s [RFC] renders them disabled because of
fibromyalgia, the medical evidence must be construed in light of fibromyalgia’s unique
symptoms and diagnostic methods, as described in SSR 12-2p.”). Here, the ALJ failed to do that,
and that failure is error. See SSR 12-2p, available at 2012 WL 3104869, at 6 (discussing that
when assessing a claimant’s RFC, “we will consider a longitudinal record” of the claimant’s

fibromyalgia because symptoms may “wax and wane so that a person may have ‘bad days and
good days’”).
5. Symptom Testimony Summary
The ALJ erred in rejecting plaintiff’s subjective symptom testimony based on her
inconsistent statements about using a cane and her activities of daily living. Conversely, the ALJ
appropriately discounted plaintiff’s testimony about her mental health limitations, including her
reported depression and anxiety because she improved with treatment. That sole rationale,
however, does not amount to clear and convincing reasons to discount plaintiff’s subjective
symptom testimony here. See Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (holding
ALJ may not discount claimant’s testimony solely because it is not substantiated by objective

medical evidence).
\ \ \ \ \
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Page 13 – OPINION AND ORDER
C. Dr. Blunda’s Medical Opinion
In assessing plaintiff’s RFC, the ALJ found unpersuasive the medical opinion of Megan
Blunda, M.D., plaintiff’s primary care physician, that plaintiff’s impairments precluded an eight-
hour workday. (Tr. 30.) In the ALJ’s view, there was little support in the record for Dr. Blunda’s
position that claimant could sit for less than three hours; stand/walk for two hours; lift less than
15 hours; carry less than ten pounds; needed to alternate positions every one to 20 minutes; could
occasionally use her right hand, and less than occasionally use her left hand, bend, reach, and
stoop; and that plaintiff would be absent from work for more than six days per month. (Id.) That
is because of plaintiff’s normal gait, lack of display of significant pain behaviors; no joint

deformities, misalignment, instability, or atrophy; five out of five strength; and ability to transfer
independently from sitting to standing. (Tr. 30-31.) Further, the ALJ observed that Dr. Blunda’s
treatment records showed a normal physical examination and that the limitations noted by Dr.
Blunda were “as reported by claimant.” (Tr. 30.)
For disability claims filed on or after March 27, 2017, new regulations for evaluation
medical opinion evidence apply. Revisions to Rules Regarding the Evaluation of Medical
Opinion Evidence (Revisions to Rules), 2017 WL 168819, 82 Fed. Reg. 5844, at *5867-68 (Jan
18, 2017). Under those revised regulations, the ALJ no longer “weighs” medical opinions but
instead determines which are most “persuasive.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The
new regulations eliminate the hierarchy of medical opinions and state that the agency does not

defer to any particular medical opinions, even those from treating sources. Id.; see also Woods v.
Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The revised social security regulations are clearly
irreconcilable with our caselaw according special deference to the opinions of treating and

Page 14 – OPINION AND ORDER
examining physicians on account of their relationship with the claimant.”) Under the new
regulations, the ALJ primarily considers the “supportability” and “consistency” of the opinions
in determining whether an opinion is persuasive. 20 C.F.R. §§ 404.1520c(c), 416.920c(c).
Supportability is determined by whether the medical source presents explanations and objective
medical evidence to support his or her opinions. Id. §§ 404.1520c(c)(1), 416c(c)(1). Consistency
is determined by how consistent the opinion is with evidence from other medical and nonmedical
sources. Id. §§ 404.1520c(c)(2), 416.920c(c)(2).
An ALJ may also consider a medical source’s relationship with the claimant by looking
at factors such as the length, purpose, or extent of the treatment relationship, the frequency of the

claimant’s examinations, and whether there is an examining relationship. Id. §§ 404.1520c(c)(3),
416c(c)(3). An ALJ is not, however, required to explain how they considered those secondary
medical factors unless they find that two or more medical opinions about the same issue are
equally well-supported and consistent with the record but not identical. Id. §§ 404.1520c(b)(2)-
(3), 416c(b)(2)-(3).
The regulations require ALJs to “articulate . . . how persuasive [they] find all of the
medical opinions” and “explain how [they] considered the supportability and consistency
factors.” Id. §§ 404.1520c(c)(b), 416c(b). The court must, moreover, continue to consider
whether the ALJ’s analysis has the support of substantial evidence. See 42 U.S.C. § 405(g);
Woods, 32 F.4th at 792 (“Even under the new regulations, an ALJ cannot reject an examining or

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

Page 15 – OPINION AND ORDER
supported by substantial evidence.”).3 Id.
Plaintiff asserts that the limitations the ALJ presumably dismissed as “reported by the
claimant” to her doctors were in fact well supported by objective MRI evidence and that the
finding “normal physical examination” was an instance of cherry picking from the record. (Pl.’s
Br. at 11.) According to plaintiff, any normal clinical examination findings were far outweighed
by the “profoundly abnormal” diagnostic imaging. (Id.) Finally, plaintiff asserts that the finding
that plaintiff “did not display significant pain behavior” is belied by the record indicating years
of severe pain. (Pl.’s Br. at 12.)
The court disagrees: the ALJ’s findings are supported by substantial evidence and are

sufficient explanations for discounting Dr. Blunda’s opinion.
For example, a review of the record shows that Dr. Blunda’s physical examinations of the
plaintiff revealed mostly normal findings. At plaintiff’s first meeting with Dr. Blunda in May
2019, plaintiff complained of chronic pain in her neck and back, had diffuse bulging disks, and
was positive for joint pain. (Tr. 963, 968.) Dr. Blunda’s physical examinations showed plaintiff
had normal range of motion in her neck and normal range of motion in her upper and lower
extremities. (Tr. 978.) In July, Dr. Blunda found on examination that plaintiff had 5/5 strength
and 5/5 hip and knee flexion, dorsiflexion, plantarflexion, and knee extension, with a normal gait
and normal rapid alternating movements. (Tr. 1217.) In August, the last examination before Dr.
Blunda provided her physical capacity assessment, Dr. Blunda described that plaintiff had an

3 Under the new framework, the ALJ is no longer required to “provide specific and
legitimate reasons for rejecting an examining doctor’s opinion;” rather, the ALJ’s reasons must
“simply be supported by substantial evidence.” Woods, 32 F.4th at 787.

Page 16 – OPINION AND ORDER
antalagic gait due to the surgical boot she was wearing, as well as limited back flexion with pain
associated with bending forward. (Tr. 1222, 1225.) Dr. Blunda also noted that she completed the
disability paperwork “according to patient’s report of her abilities.” (Tr. 1222.) Based on the
inconsistency between Dr. Blunda’s own records and the physical capacity assessment, the ALJ
reasonably concluded that the opinion was not persuasive.
Dr. Blunda also relied on the reports from Nancy Maloney, M.D., and Mark Belza, M.D.,
when making her physical capacity assessment. (Tr. 1055.) Dr. Maloney established pain
management care with plaintiff in June 2019. (Tr. 1062.) Dr. Maloney noted that plaintiff
presented with no significant pain behaviors, had normal head position, normal shoulder/pelvic

level with no abnormal spinal curves, and that she shifted to the right when standing because of
left foot pain when weightbearing. (Tr. 1065.) Plaintiff also had normal gait, performed the chin
tuck maneuver without difficulty, had no abnormal vertebral motion when tested in flexed,
neutral, and rotated positions, and no joint deformities, misalignment, instability, or atrophy in
her neck, back, scapulae and upper extremities. (Tr. 1065.) There were no muscle spasms or
spinous process tenderness. (Tr. 1065.) Plaintiff also had 5/5 strength throughout, no impairment
in bilateral upper extremity movement, normal reflexes, and could transfer independently from
sitting to standing. (Tr. 1065.) In August, plaintiff was negative for joint and muscle plain with
no significant pain behaviors, had normal head position and spinal curves with normal gait, but
was also noted to have intractable pain. (Tr. 1227.)

Dr. Belza treated plaintiff for cervical and lumbar surgeries in 2001, 2006, and 2007, but
did not see plaintiff again until June 2019, on a referral from Dr. Blunda. (Tr. 1077.) Plaintiff
presented to Dr. Belza with complaints of neck and back pain, but upon examination plaintiff’s

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motor strength was normal in upper and lower extremities. (Tr. 1077.) Plaintiff also had poor
range of motion, had a positive compression test, and was tender in paraspinals lumbar and
sacral region. (Tr. 1078.) According to a reviewed MRI, she also had a loss of disk space height
and significant derangement of her L3-L4 segment. (Tr. 1078.)
Be that as it may that plaintiff’s abnormal MRI findings provide some support for greater
limitations than assessed in her RFC, that alone is not enough to support the extreme limitations
in Dr. Blunda’s assessment. The relatively benign physical findings in the records from Drs.
Blunda, Maloney, and Belza also do not support Dr. Blunda’s extreme limitations, and the ALJ’s
determination that Dr. Blunda’s opinion is inconsistent with the other medical evidence is

supported by substantial evidence. Therefore, the ALJ reasonably concluded Dr. Blunda’s
assessment was unpersuasive; the ALJ did not err in evaluating Dr. Blunda’s opinion.
D. Remedy
A reviewing court has discretion to remand an action for further proceedings or for a
finding of disability and an award of benefits. See, e.g., Burrell v. Colvin, 775 F.3d 1133, 1141
(9th Cir. 2014). Whether an action is remanded for an award of benefits or for further
proceedings depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d
1172, 1179 (9th Cir. 2000). In determining whether an award of benefits is warranted, the court
conducts the “three-part credit-as-true” analysis. Garrison, 759 F.3d at 1020. Under that
analysis, the court considers whether: (1) the ALJ has failed to provide legally sufficient reasons

for rejecting evidence; (2) the record has been fully developed and further proceedings would
serve no useful purpose; and (3) if the improperly discredited evidence were credited as true, the
ALJ would be required to find the claimant disabled on remand. Dominguez v. Colvin, 808 F.3d

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403, 407 (9th Cir. 2015). Even if all the requisites are met, however, the court may still remand
for further proceedings “when the record as a whole creates serious doubt as to whether the
claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021.
Plaintiff argues that a remand for further proceedings is the proper course here because
the ALJ failed to adequately explain why she discounted plaintiff’s subjective symptom
testimony, failed to adequately assess plaintiff’s fibromyalgia at step two, and failed to properly
evaluate Dr. Blunda’s medical opinion. As discussed above, the ALJ did not err at step two and
properly rejected the medical opinion of Dr. Blunda. However, the ALJ erred in evaluating
plaintiff’s subjective symptom testimony, which necessarily results in an incomplete RFC and

step-five finding. As such, the issue of plaintiff’s RFC remains unresolved. Taylor v. Berryhill,
729 F. App’x 906, 907 (9th Cir. 2018) (“Remand for further proceedings is proper because
outstanding issues in the record remain that must be resolved before a determination of disability
can be made.) Such an error is “not inconsequential to the ultimate nondisability determination.”
See Treichler v. Comm’n Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014).
On remand, the ALJ shall offer plaintiff the opportunity for a de novo hearing, take any
further action needed to complete the record, and issue a new decision. The ALJ will reevaluate
plaintiff’s alleged symptoms, including her fibromyalgia symptoms, and incorporate that
testimony into the RFC, or provide with clear and convincing reasons why that testimony is
rejected. As warranted, the ALJ will reevaluate plaintiff’s RFC and obtain supplemental VE

evidence if necessary. Garrison, 759 F.3d at 1019 (stating remand is appropriate where
“additional proceedings can remedy defects in the original administrative proceeding”).

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CONCLUSION
For the above reasons, the court REVERSES the Commissioner’s final decision and
REMANDS this case for further proceedings.
ORDERED on October 27, 2023.
Ly ha.
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396617. Public record. Not legal advice.