Maria Anguiano v. Kilolo Kijakazi

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 EASTERN DIVISION

11 MARIA A.1, ) No. 5:22-cv-02273-JDE

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Plaintiff, ) MEMORANDUM OPINION AND

13 v. ) ORDER

KILOLO KIJAKAZI, Acting )

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Commissioner of Social Security, )

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16 Defendant. )

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Maria A. (“Plaintiff”) filed a Complaint on December 30, 2022, seeking

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review of a denial of her applications for Disability Insurance Benefits (“DIB”)

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and Supplemental Security Income (“SSI”). The Court has reviewed Plaintiff’s

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opening brief (Dkt. 16), the Commissioner’s answering brief (Dkt. 21), and

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Plaintiff’s reply (Dkt. 22), as well as the Administrative Record (Dkt. 15

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“AR”). The matter now is ready for decision.

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1 Plaintiff’s name has been partially redacted in accordance with Fed. R. Civ.

26 P. 5.2(c)(2)(B) and the recommendation of the Committee on Court

27 Administration and Case Management of the Judicial Conference of the

United States.

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1 I.

2 BACKGROUND

3 Plaintiff protectively filed for DIB on April 6, 2018 and for SSI on April

4 11, 2018. AR 94, 95. Plaintiff alleges disability commencing on June 1, 2016.

5 AR 97. After denials of the applications (AR 104, 134), Plaintiff, represented

6 by counsel, appeared and testified during a telephonic hearing before an

7 Administrative Law Judge (“ALJ”) on July 26, 2022. AR 53-84. An impartial

8 Vocational Expert appeared and also testified. AR 79.

9 On August 15, 2022, the ALJ concluded Plaintiff was not disabled. AR

10 24-35. The ALJ found that Plaintiff has not engaged in substantial gainful

11 activity since June 1, 2016, her alleged onset date. AR 26. The ALJ determined

12 Plaintiff suffered from the following severe impairments: obesity, degenerative

13 joint disease of the left shoulder, degenerative disc disease of the lumbar spine,

14 fibromyalgia and polyarthralgia (20 C.F.R. 404.1520(c) and 416.920(c)). AR

15 27. The ALJ determined Plaintiff had the non-severe impairments of anxiety

16 and bipolar disorder. Id. The ALJ found Plaintiff did not have an impairment

17 or combination of impairments that met or medically equaled a listed

18 impairment and found that Plaintiff had the residual functional capacity

19 (“RFC”) to perform light work,2 with the following limitations:

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2 Light work” is defined as:

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[L]ifting no more than 20 pounds at a time with frequent lifting or

22 carrying of objects weighing up to 10 pounds. Even though the

weight lifted may be very little, a job is in this category when it

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requires a good deal of walking or standing, or when it involves

24 sitting most of the time with some pushing and pulling of arm or

leg controls. To be considered capable of performing a full or wide

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range of light work, [a claimant] must have the ability to do

26 substantially all of these activities.

27 20 C.F.R. §§ 404.1567(b), 416.967(b); see also Aide R. v. Saul, 2020 WL

7773896, *2 n.6 (C.D. Cal. Dec. 30, 2020).

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1 [She can] stand or walk for two hours in an eight hour workday;

2 she can never climb ladders, ropes or scaffolds and occasionally

3 climb ramps or stairs, balance, stoop, kneel, crouch and crawl; she

4 should avoid concentrated exposure to working at unprotected

5 heights and hazardous conditions; and she can never perform

6 overhead lifting with the left shoulder.

7 AR 29-30. The ALJ further found that Plaintiff is capable of performing

8 past relevant work as a dispatcher and quality control clerk. AR 34. The

9 Appeals Council denied Plaintiff’s request for review, making the ALJ’s

10 decision the agency’s final decision. AR 8-13.

11 II.

12 LEGAL STANDARDS

13 A. Standard of Review

14 Under 42 U.S.C. § 405(g), this Court may review a decision to deny

15 benefits. The ALJ’s findings and decision should be upheld if they are free

16 from legal error and supported by substantial evidence based on the record as a

17 whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (as

18 amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial

19 evidence means such relevant evidence as a reasonable person might accept as

20 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035

21 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Id.

22 To assess whether substantial evidence supports a finding, the court “must

23 review the administrative record as a whole, weighing both the evidence that

24 supports and the evidence that detracts from the Commissioner’s conclusion.”

25 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the evidence can

26 reasonably support either affirming or reversing[,]” the reviewing court “may

27 not substitute its judgment” for that of the Commissioner. Id. at 720-21; see

28 also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the

1 evidence is susceptible to more than one rational interpretation, [the court]

2 must uphold the ALJ’s findings if they are supported by inferences reasonably

3 drawn from the record.”), superseded by regulation on other grounds as stated

4 in Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021).

5 Lastly, even if an ALJ errs, the decision will be affirmed if the error is

6 harmless (Molina, 674 F.3d at 1115), that is, if it is “inconsequential to the

7 ultimate nondisability determination[,]” or if “the agency’s path may

8 reasonably be discerned, even if the agency explains its decision with less than

9 ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted); Smith, 14

10 F.4th at 1111 (even where the “modest burden” of the substantial evidence

11 standard is not met, “we will not reverse an ALJ’s decision where the error

12 was harmless”).

13 B. The Five-Step Sequential Evaluation

14 When a claim reaches an ALJ, the ALJ conducts a five-step sequential

15 evaluation to determine at each step if the claimant is disabled. See Ford v.

16 Saul, 950 F.3d 1141, 1148-49 (9th Cir. 2020); Molina, 674 F.3d at 1110.

17 First, the ALJ considers if the claimant works at a job that meets the criteria

18 for “substantial gainful activity.” Molina, 674 F.3d at 1110. If not, the ALJ

19 proceeds to a second step to determine if the claimant has a severe medically

20 determinable impairment or combination of impairments that has lasted for

21 more than twelve months. Id. If so, the ALJ proceeds to a third step to assess

22 whether the impairments render the claimant disabled because they meet or

23 equal any of the listed impairments in the Social Security Regulations at 20

24 C.F.R. Part 404, Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec.

25 Admin., 807 F.3d 996, 1001 (9th Cir. 2015). If the impairments do not meet or

26 equal a listing, before proceeding to the fourth step, the ALJ assesses the

27 claimant’s RFC, that is, what the claimant can do on a sustained basis despite

28 the limitations from the impairments. See §§ 404.1520(a)(4), 416.920(a)(4);

1 Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). After

2 assessing the RFC, the ALJ proceeds to the fourth step to determine if, in light

3 of the RFC, the claimant can perform past relevant work as actually or

4 generally performed. See Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). If

5 the claimant cannot perform past relevant work, the ALJ proceeds to a fifth

6 and final step to determine whether there is any other work, in light of the

7 claimant’s RFC, age, education, and work experience, that the claimant can

8 perform and that exists in “significant numbers” in either the national or

9 regional economies. See Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir.

10 1999); 20 C.F.R. §§ 404.1566(a), 416.966(a). A claimant who can do other

11 work is not disabled; a claimant who cannot and who meets the duration

12 requirement is disabled. See Tackett, 180 F.3d at 1099; see also Woods v.

13 Kijakazi, 32 F.4th 785, 788 n.1 (9th Cir. 2022) (summarizing the steps and

14 noting that “[t]he recent [2017] changes to the Social Security regulations did

15 not affect the familiar ‘five-step sequential evaluation process.’”).

16 The claimant generally bears the burden at steps one through four to

17 either show disability or entitlement to proceed to the next step and bears the

18 ultimate burden to show disability. See, e.g., Ford, 950 F.3d at 1148; Molina,

19 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995).

20 However, at Step Five, the ALJ has a limited burden of production to identify

21 representative jobs that the claimant can perform and that exist in “significant”

22 numbers in the economy. See Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir.

23 2012); Tackett, 180 F.3d at 1100.

24 III.

25 DISCUSSION

26 Plaintiff raises three issues (Dkt. 16 at 1-2):

27 Issue No. 1: Whether the ALJ provided specific, clear, and convincing

28 reasons for discounting Plaintiff’s allegations of pain and physical dysfunction.

1 Issue No. 2: Whether the ALJ properly evaluated the examining medical

2 source opinion of the consultative internist, Bahaa Girgis, M.D.

3 Issue No. 3: Whether the ALJ properly evaluated whether Plaintiff’s past

4 work as a dispatcher and quality control clerk was vocationally relevant.

5 Because the Court finds remand appropriate on Issue No. 2, and because

6 further administrative proceedings as to that issue may impact other challenged

7 findings, the Court declines to address Plaintiff’s remaining arguments.

8 A. Medical Source Opinion

9 1. Applicable Law

10 For claims filed on or after March 27, 2017, new regulations apply that

11 change the framework for how an ALJ must evaluate medical opinion

12 evidence. Revisions to Rules Regarding Evaluation of Medical Evidence, 2017

13 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c,

14 416.920c. The new regulations provide the ALJ will no longer “give any

15 specific evidentiary weight, including controlling weight, to any medical

16 opinion(s) or prior administrative medical finding(s), including those from [a

17 claimant’s] medical sources.” Revisions to Rules, 2017 WL 168819, 82 Fed.

18 Reg. 5844-01, at 5867-68; see also 20 C.F.R. §§ 404.1520c(a), 416.920c(a).

19 Instead, an ALJ must consider and evaluate the persuasiveness of all medical

20 opinions or prior administrative medical findings. 20 C.F.R. §§ 404.1520c(b),

21 416.920c(b). The factors for evaluating the persuasiveness of medical opinions

22 and prior administrative medical findings include supportability, consistency,

23 relationship with claimant (including length of the treatment, frequency of

24 examinations, purpose of the treatment, extent of the treatment relationship,

25 and examining relationship), specialization, and “other factors that tend to

26 support or contradict a medical opinion or prior administrative medical

27 finding” (including, but not limited to, “evidence showing a medical source

28 has familiarity with the other evidence in the claim or an understanding of [the

1 Agency’s] disability program’s policies and evidentiary requirements”). 20

2 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5).

3 Supportability and consistency are the most important factors, and

4 therefore, the ALJ is required to explain how both factors were considered. 20

5 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The regulations provide, in

6 pertinent part:

7 (1) Supportability. The more relevant the objective medical

8 evidence and supporting explanations presented by a medical

9 source are to support his or her medical opinion(s) or prior

10 administrative medical finding(s), the more persuasive the medical

11 opinions or prior administrative medical finding(s) will be.

12 (2) Consistency. The more consistent a medical opinion(s) or prior

13 administrative medical finding(s) is with the evidence from other

14 medical sources and nonmedical sources in the claim, the more

15 persuasive the medical opinion(s) or prior administrative finding(s)

16 will be.

17 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). The ALJ may, but is not

18 required to, explain how “the factors in paragraphs (c)(3) through (c)(5),” i.e.,

19 “[r]elationship with the claimant,” “[s]pecialization,” and “other factors that

20 tend to support or contradict a medical opinion or prior administrative medical

21 finding,” were considered. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

22 2. Analysis

23 On February 5, 2019, Plaintiff attended an internal medicine evaluation

24 with Bahaa Girgis, M.D. AR 577-582. Plaintiff’s chief complaints were of

25 fibromyalgia and lower back pain. AR 577. Plaintiff also complained of

26 multiple joint and muscle pains, generalized weakness, and lack of energy. Id.

27 Dr. Girgis observed that Plaintiff had decreased range of motion in her back

28 and “multiple points of tenderness over the shoulder, back, pelvic girdle,

1 elbows and knees.” AR 579-80. Dr. Girgis observed that Plaintiff could walk

2 and move easily without an assistive aid; Plaintiff had intact sensation and

3 reflexes; Plaintiff could get on and off the exam table without difficulty; and

4 Plaintiff had normal motor strength. AR 578-81. Dr. Girgis’s impression was

5 that Plaintiff had a history of hypothyroidism, history of chronic back pain,

6 and history of fibromyalgia. AR 581. Dr. Girgis assessed that Plaintiff can lift

7 and carry 20 pounds occasionally and 10 pounds frequently, Plaintiff can stand

8 and walk two hours out of eight hours with frequent stops of 10 minutes per

9 hour if necessary, and Plaintiff can sit for six hours out of eight hours. Id.

10 The ALJ assessed Dr. Girgis’s opinion as follows:

11 This opinion is partially persuasive. The opinion that [Plaintiff]

12 can stand and walk for two hours out of eight hours with frequent

13 stops of 10 minutes per hour if necessary is not persuasive, as it is

14 not supported by Dr. Girgis’s own consultative examination

15 findings of grossly intact sensation and reflexes in her upper and

16 lower extremities, normal motor strength throughout (5/5), ability

17 to change positions and get on and off an exam table without

18 difficulty, a normal gait that was not unsteady or unpredictable

19 and the use of no assistive aid when ambulating across the room

20 [Citation]. The remainder of the findings are persuasive as they are

21 consistent with the claimant’s overall conservative treatment

22 consisting primarily of medication management and physical

23 therapy with periods of noted improvement for her

24 musculoskeletal impairments[.]

25 AR 33-34.

26 Plaintiff argues the ALJ failed to present a well-supported explanation

27 for discounting Dr. Girgis’s opinion regarding frequent stops of 10 minutes per

28 hour. Dkt. 16 at 9-12. The Court agrees.

1 As Plaintiff contends, the ALJ did not sufficiently address the

2 consistency with other evidence factor. The ALJ was required to “explain”

3 how she considered the consistency factor, meaning “the extent to which [Dr.

4 Girgis’s opinion] is ‘consistent. . . with the evidence from other medical

5 sources and nonmedical sources in the claim.’” Woods, 32 F.4th at 792 (citing

6 20 C.F.R. § 404.1520c(c)(2)). Here, the ALJ provided no explanation as to

7 how Dr. Girgis’s opinion regarding frequent stops of 10 minutes per hour was

8 consistent or inconsistent with other evidence in the record. Thus, the ALJ

9 committed legal error. See, e.g., Tamara D. v. Comm'r of Soc. Sec., 2022 WL

10 2314993, at *4 (W.D. Wash. June 28, 2022) (finding the Court cannot affirm

11 the ALJ’s finding where the ALJ rejected a portion of a doctor’s medical

12 opinion because, among other things, the ALJ did not explain which evidence

13 in the plaintiff’s record undermined the doctor’s medical opinion).

14 The Commissioner argues that, because the ALJ found the “remainder”

15 of Dr. Girgis’s findings to be persuasive “as they are consistent with

16 [Plaintiff’s] overall conservative treatment” then “[it] naturally follows, that the

17 converse was also true – that the portion of Dr. Girgis’ opinion that the ALJ

18 found not persuasive, was inconsistent with the overall medical evidence.” AR

19 34; Dkt. 21 at 7. But the ALJ did not find what the Commissioner now asks

20 the Court to infer. In fact, the Commissioner concedes there were other

21 “objective findings indicating problems with Plaintiff’s ability to ambulate.”

22 Dkt. 21 at 7. Ultimately, the ALJ bears the responsibility to explain how she

23 considered the consistency factor in rejecting Dr. Girgis’s limitation requiring

24 frequent stops of 10 minutes per hour. The ALJ did not do so here and, on the

25 facts of this case, the Court declines the Commissioner’s invitation to infer

26 such a finding with this mixed underlying medical record.

27 The Commissioner identifies medical records that could be viewed as

28 showing inconsistency with Dr. Girgis’s opinion on frequent stops of 10

1 minutes per hour. See Dkt. 21 at 7. However, the ALJ did not purport to rely

2 on those records in discounting Dr. Girgis’s opinion. See Garrison v. Colvin,

3 759 F.3d 995, 1010 (9th Cir. 2014) (district court’s review is limited to only

4 grounds relied upon by ALJ); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)

5 (same). And, as noted above, the Commissioner concedes there was at least

6 some objective evidence indicating problems with Plaintiff’s ability to walk.

7 Dkt. 21 at 7. Here, the ALJ failed to “direct the Court to the evidence the

8 Court may consider to decide whether [her] conclusion was substantially

9 supported.” Tamara D., 2022 WL 2314993, at *4; see also Boyd v. Comm'r of

10 Soc. Sec. Admin., 2022 WL 3152492, at *5 (D. Ariz. Aug. 8, 2022) (“it was

11 the ALJ’s responsibility to identify such records in the first instance. [Citation].

12 On remand, an ALJ may very well agree with the Commissioner that the cited

13 records establish a lack of supportability and consistency, but this possibility

14 does not undermine the conclusion that reversal is required”).

15 The Commissioner argues that, if any error was committed, the error

16 was harmless. Dkt. 21 at 8. Plaintiff contends the error was not harmless, as a

17 Vocational Expert testified that a hypothetical person with Plaintiff’s

18 vocational profile and RFC would not be able to work with an additional

19 limitation allowing for frequent stops of 10 minutes per hour. Dkt. 16 at 12

20 (citing AR 81). Here, the Commissioner asks the Court to speculate as to the

21 ALJ’s reasoning for rejecting a limitation that appears to have been material to

22 the nondisability determination. In such a situation, the Court cannot

23 confidently conclude the error was harmless. See Brown-Hunter, 806 F.3d at

24 492 (if ALJ fails to specify adequate reasoning, a reviewing court will be

25 unable to meaningfully review without substituting its conclusion for the ALJ’s

26 or speculating as to grounds for the ALJ’s conclusions; in such a situation,

27 “such error will usually not be harmless”).

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1 B. Remand Is Appropriate

2 The Court has discretion to remand the matter for further proceedings.

3 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended). When

4 further proceedings would serve no useful purpose or when the record has been

5 fully developed, a court may direct an immediate award of benefits. See

6 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Harman, 211 F.3d at

7 1179 (noting “the decision of whether to remand for further proceedings turns

8 upon the likely utility of such proceedings”). Remand for further proceedings is

9 appropriate where issues must be resolved before a determination of disability

10 can be made and it is not clear from the record that the claimant is disabled.

11 See Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003).

12 Here, remand is required because the ALJ failed to properly assess Dr.

13 Girgis’s medical opinion. On remand, the ALJ shall reassess the medical

14 opinion consistent with the foregoing and then proceed with all steps, as

15 necessary, of the sequential evaluation. As remand is ordered, the Court

16 declines to take up the other claims of error raised by Plaintiff. See Hiler v.

17 Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to

18 the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative

19 ground for remand.”). The remand shall proceed on an “open record.” See

20 Brown-Hunter, 806 F.3d at 495; Bunnell, 336 F.3d at 1115-16. The parties may

21 take up any other issues relevant to resolving Plaintiff’s claim of disability,

22 including those not decided herein.

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1 IV.

2 ORDER

3 Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS

4 || ORDERED that Judgment be entered reversing the decision of the

5 ||Commissioner of Social Security and remanding this matter for further

6 ||administrative proceedings consistent with this Order.

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8 / fo L AG

DATED: July 27, 2023

9 HN D. EARLY

10 United States Magistrate Judge

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