Allen v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: August 4, 2022
• Docket: 3:21-cv-08241
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Nikki A. Allen, No. CV-21-08241-PCT-JAT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Nikki A. Allen’s appeal from the 16 Commissioner of the Social Security Administration’s (“SSA”) denial of social security 17 disability benefits. (Doc. 1.) The appeal is fully briefed (Docs. 14, 17, 18), and the Court 18 now rules. 19 I. BACKGROUND 20 A. Factual Overview 21 On her alleged onset date, Plaintiff was 31 years old. (Doc. 13-7 at 306.) She has 22 one year of college, vocational school training in phlebotomy, and past relevant work as a 23 phlebotomist. (Doc. 13-3 at 33; Doc. 13-7 at 200.) Plaintiff filed her social security 24 disability claim on May 22, 2018, alleging disabilities beginning on November 14, 2017, 25 including multiple sclerosis, peripheral neuropathy, inflammatory bowel disease, breast 26 cancer gene 1 positive (“BRCA 1 positive”), and vestibular system disorder. (Doc. 13-3 at 27 24, 27.) Her claim was initially denied on January 2, 2019, and upon reconsideration on 28 March 28, 2019. (Id. at 24.) Plaintiff subsequently requested a hearing that was held 1 telephonically on September 10, 2020. (Id.) On October 14, 2020, the ALJ issued a decision 2 finding Plaintiff not disabled. (Id. at 24–33.) The SSA Appeals Council denied Plaintiff’s 3 request for review on August 30, 2021, and adopted the ALJ’s decision as the SSA’s final 4 decision. (Id. at 1–6.) Following this unfavorable decision, Plaintiff filed the present 5 appeal. (Doc. 1.) 6 B. The SSA’s Five-Step Evaluation Process 7 To qualify for social security benefits, a claimant must show she “is under a 8 disability.” 42 U.S.C. § 423(a)(1)(E). A claimant is disabled if she suffers from a medically 9 determinable physical or mental impairment that prevents her from engaging “in any 10 substantial gainful activity.” Id. § 423(d)(1)–(2). The SSA has created a five-step process 11 for an ALJ to determine whether the claimant is disabled. See 20 C.F.R. § 404.1520(a)(1). 12 Each step is potentially dispositive. See id. § 404.1520(a)(4). 13 At the first step, the ALJ determines whether the claimant is “doing substantial 14 gainful activity.” Id. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. Substantial 15 gainful activity is work activity that is both “substantial,” involving “significant physical 16 or mental activities,” and “gainful,” done “for pay or profit.” Id. § 404.1572(a)–(b). 17 At the second step, the ALJ considers the medical severity of the claimant’s 18 impairments. Id. § 404.1520(a)(4)(ii). If the claimant does not have “a severe medically 19 determinable physical or mental impairment,” the claimant is not disabled. Id. A “severe 20 impairment” is one which “significantly limits [the claimant’s] physical or mental ability 21 to do basic work activities.” Id. § 404.1520(c). Basic work activities are “the abilities and 22 aptitudes necessary to do most jobs.” Id. § 404.1522(b). 23 At the third step, the ALJ determines whether the claimant’s impairment or 24 combination of impairments “meets or equals” an impairment listed in Appendix 1 to 25 Subpart P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is disabled. 26 Id. If not, before proceeding to step four, the ALJ must assess the claimant’s “residual 27 functional capacity” (“RFC”). Id. § 404.1520(a)(4). The RFC represents the most a 28 claimant “can still do despite [her] limitations.” Id. § 404.1545(a)(1). In assessing the 1 claimant’s RFC, the ALJ will consider the claimant’s “impairment(s), and any related 2 symptoms, such as pain, [that] may cause physical and mental limitations that affect what 3 [the claimant] can do in a work setting.” Id. 4 At the fourth step, the ALJ uses the RFC to determine whether the claimant can still 5 perform her “past relevant work.” Id. § 404.1520(a)(4)(iv). The ALJ compares the 6 claimant’s RFC with the physical and mental demands of the claimant’s past relevant work. 7 Id. § 404.1520(f). If the claimant can still perform her past relevant work, the ALJ will find 8 that the claimant is not disabled. Id. § 404.1520(a)(4)(iv). 9 At the fifth and final step, the ALJ determines whether—considering the claimant’s 10 RFC, age, education, and work experience—she “can make an adjustment to other work.” 11 Id. § 404.1520(a)(4)(v). If the ALJ finds that the claimant can make an adjustment to other 12 work, then the claimant is not disabled. Id. If the ALJ finds that the claimant cannot make 13 an adjustment to other work, then the claimant is disabled. Id. 14 C. The ALJ’s Application of the Factors 15 At the first step, the ALJ concluded that Plaintiff had not engaged in substantial 16 gainful activity since the alleged onset date of her disability. (Doc. 13-3 at 27.) 17 At the second step, the ALJ determined that Plaintiff’s multiple sclerosis, peripheral 18 neuropathy, inflammatory bowel disease, BRCA 1 positive, and vestibular system disorder 19 constituted severe impairments under 20 C.F.R. § 404.1520(c). (Id.) The ALJ also 20 determined that the rest of Plaintiff’s alleged impairments were non-severe. (Id. at 27–29.) 21 At the third step, the ALJ determined that neither Plaintiff’s impairments nor a 22 combination of Plaintiff’s impairments met or equaled the severity of one of the 23 impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 29.) After 24 evaluating the record, the ALJ determined Plaintiff’s RFC: 25 [Plaintiff] has the [RFC] to perform light work as defined in 20 26 CFR 404.1567(b), with the following additional limitations: 27 never climbing ladders, ropes or scaffolds; occasional balancing; occasional exposure to extreme heat and extreme 28 cold; occasional exposure to unprotected heights and moving 1 mechanical parts; and can be exposed to moderate noise. 2 (Id.) 3 At the fourth step, the ALJ concluded that Plaintiff is able to perform past relevant 4 work as a phlebotomist because “[t]his work does not require the performance of work- 5 related activities precluded by [her] [RFC].” (Id. at 33.) The ALJ reached this conclusion 6 based on the testimony of a vocational expert (“VE”) who testified that Plaintiff “could 7 meet the demands of the phlebotomist work.” (Id.) The VE’s testimony was elicited 8 through hypotheticals asked by the ALJ and based on Plaintiff’s RFC. (Id.) Accordingly, 9 the ALJ did not proceed to step five of the evaluation and found that Plaintiff was not 10 disabled from the alleged onset date through October 14, 2020. (Id.) 11 II. LEGAL STANDARD 12 This Court may not overturn the ALJ’s denial of disability benefits absent legal error 13 or a lack of substantial evidence. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). 14 “Substantial evidence means . . . such relevant evidence as a reasonable mind might accept 15 as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) 16 (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). 17 On review, the Court “must consider the entire record as a whole, weighing both the 18 evidence that supports and the evidence that detracts from the [ALJ’s] conclusion, and may 19 not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quoting 20 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)). The ALJ, not this Court, draws 21 inferences, resolves conflicts in medical testimony, and determines credibility. See 22 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Gallant v. Heckler, 753 F.2d 1450, 23 1453 (9th Cir. 1984). Thus, the Court must affirm even when “the evidence admits of more 24 than one rational interpretation.” Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The 25 Court “review[s] only the reasons provided by the ALJ in the disability determination and 26 may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 27 1010. 28 1 III. DICUSSION 2 Plaintiff raises three issues on appeal: (1) the ALJ discrediting Plaintiff’s symptom 3 testimony was error; (2) regarding Plaintiff’s physical symptoms, the ALJ improperly 4 weighed the persuasive value of the nonexamining state agency physicians’ medical 5 opinions; and (3) the Court should remand for an award of benefits or a new hearing. (Doc. 6 14 at 15–25.) 7 A. Allen’s Symptom Testimony 8 Plaintiff argues that the ALJ rejected Plaintiff’s symptom testimony in the absence 9 of specific, clear, and convincing reasons. (Doc. 14 at 15–23.) Specifically, Plaintiff argues 10 that the ALJ improperly considered the evidence in the record and did not sufficiently 11 explain why he discredited Plaintiff’s symptom testimony. (Id.) The Commissioner argues 12 that “[s]ubstantial evidence supports the ALJ’s evaluation of Plaintiff’s alleged 13 symptoms.” (Doc. 17 at 4; id. at 4–9.) 14 The Ninth Circuit has established a two-step analysis for an ALJ to determine 15 whether to credit a claimant’s subjective symptom testimony. “First, the ALJ must 16 determine whether the claimant has presented objective medical evidence of an underlying 17 impairment which could reasonably be expected to produce the pain or other symptoms 18 alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison, 759 19 F.3d at 1014–15). If the claimant presents such evidence, the ALJ then evaluates the 20 claimant’s subjective complaints. See id. “In evaluating the credibility of pain testimony 21 after a claimant produces objective medical evidence of an underlying impairment, an ALJ 22 may not reject a claimant’s subjective complaints based solely on a lack of medical 23 evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 24 676, 680 (9th Cir. 2005). Instead, an ALJ must provide “specific, clear, and convincing 25 reasons” for doing so. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 26 “Although an ALJ ‘cannot be required to believe every allegation of disabling pain,’ 27 the ALJ cannot reject testimony of pain without making findings sufficiently specific to 28 permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the 1 claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (quoting Bunnell 2 v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc) and Fair v. Bowen, 885 F.2d 3 597, 603 (9th Cir. 1989)). An ALJ’s credibility determination “must rely either on reasons 4 unrelated to the subjective testimony (e.g., reputation for dishonesty), on conflicts between 5 her testimony and her own conduct, or on internal contradictions in that testimony.” Light 6 v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). In analyzing whether to discount a 7 claimant’s testimony, “[t]he ALJ must identify the testimony that was not credible and 8 specify ‘what evidence undermines the claimant’s complaints.’” Treichler v. Comm’r of 9 Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (quoting Reddick v. Chater, 157 10 F.3d 715, 722 (9th Cir. 1998)). The ALJ’s findings “must contain specific reasons for the 11 weight given to the individual’s symptoms, be consistent with and supported by the 12 evidence, and be clearly articulated so the individual and any subsequent reviewer can 13 assess how the adjudicator evaluated the individual’s symptoms.” SSR 16-3p, 82 Fed. Reg. 14 49462, 49467 (Oct. 25, 2017). If the ALJ’s path cannot “reasonably be discerned,” the 15 ALJ’s decision must be reversed. Treichler, 775 F.3d at 1103. 16 While an ALJ may not reject a claimant’s subjective complaints based solely on 17 lack of objective medical evidence to fully corroborate the alleged symptoms, see Rollins 18 v. Massanari, 261 F.3d 853, 856–57 (9th Cir. 2001); Fair, 885 F.2d at 602, the lack of 19 objective medical evidence supporting the claimant’s claims may support the ALJ’s finding 20 that the claimant is not credible. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 21 1197 (9th Cir. 2004). Factors that the adjudicator may consider when making such 22 credibility determinations include the nature, location, onset, duration, frequency, 23 radiation, and intensity of any pain, precipitating and aggravating factors (e.g., movement, 24 activity, environmental conditions), type, dosage, effectiveness, and adverse side-effects 25 of any pain medication, treatment, other than medication, for relief of pain, functional 26 restrictions, and the claimant’s daily activities. Bunnell, 947 F.2d at 346 (citing SSR 88– 27 13, 1988 WL 236011 (July 20, 1988)). 28 Plaintiff testified that she suffers from “fatigue, depression, nerve pain, muscle pain, 1 tremor from MS, arthritis, and worsening cognition and focus. She [also] stated [that] she 2 could lift 8 pounds; walk 5 minutes before needing to sit down; sit for 20-30 minutes before 3 changing position; [] does a few dishes at a time; [and that] some days are better than 4 others.” (Doc. 13-3 at 30, 47.) At the first step, “[a]fter careful consideration of the 5 evidence,” the ALJ determined that “[Plaintiff’s] medically determinable impairments 6 could reasonably be expected to cause the alleged symptoms.” (Id.) But, at the second step, 7 the ALJ determined that “[Plaintiff’s] statements concerning the intensity, persistence and 8 limiting effects of these symptoms are not entirely consistent with the medical evidence 9 and other evidence in the record.” (Id.) 10 Regarding the medical evidence in the record, the ALJ found: 11 The medical evidence of record reveals treatment for 12 complaints of right-sided weakness, sensitivity of the right side 13 of the face, and other neurologic problems. She was diagnosed with trigeminal neuralgia in 2017. In January 2018, MRI of the 14 brain showed a T2/FLAIR increased hyperintense signal in the 15 central pons without mass effect or enhancement (37F/18). Cervical spine MRI revealed a new T2 hyperintense lesion 16 with patchy enhancement at C6-C7 vertebral body level, 17 compatible with multiple sclerosis active demyelinating lesion (37F/21). 18

19 In February 2018, lumbar puncture revealed findings consistent with multiple sclerosis. In April 2018, MRI revealed 20 stable nonspecific nonenhancing T2 hyperintensity in the 21 spinal cord at C7. The claimant was started on Ocrevus infusions in April 2018, with benefit. 22 The claimant was also treated for complaints of abdominal 23 pain, which was diagnosed as gastroesophageal reflux disorder 24 (GERD) in October 2016 (1F/3). Colonoscopy was entirely normal in November 2016 (12F/12). In January 2018, 25 abdominal ultrasound revealed no acute abnormality, normal 26 gallbladder, normal liver, and the prior increased liver echogenicity had resolved (37F/16). In January 2019, 27 abdominal ultrasound revealed hepatic parenchyma diffusely 28 low in attenuation likely fatty replaced (20F/20). 1 In October 2018, MRI of the brain revealed unchanged brainstem and posterior fossa FLAIR hyperintense signal that 2 was nonspecific but would be compatible with the history of 3 multiple sclerosis; there were no new lesions, and no parenchymal enhancement to suggest active demyelination 4 (18F/22). 5 The claimant presented to the emergency room in May 2018 6 for abdominal pain, which was diagnosed as an ovarian cyst 7 (12F/44, 47). She was previously diagnosed as BRCA 1 positive, which gave her an increased risk of developing a 8 triple negative breast cancer and an increased risk of both a 9 secondary breast cancer and ovarian cancer (12F/103). On November 26, 2019, the claimant underwent examination 10 under anesthesia, robotic assisted laparoscopy, total 11 hysterectomy, right salpingo-oophorectomy, and cystoscopy (36F, 37F). 12 13 The objective medical evidence and the claimant’s treatment history are not entirely consistent with her allegations of the 14 severity of her functional limitations. Although the claimant has received treatment for the allegedly disabling symptoms, 15 which would normally weigh somewhat in the claimant's 16 favor, the record also reveals that the treatment has been generally successful in controlling those symptoms. The 17 claimant reportedly improved with medications and other 18 conservative treatment provided by her physicians (see, e.g., 13F; 24F/2, 3, 8; 25F/4; 28F/2; 39F/2). 19

20 The claimant alleges debilitating physical and mental problems since November 2017, but the objective evidence does not 21 support her assertion. Cervical spine x-rays revealed 22 straightening of lordosis, but were otherwise negative (37F/10). Lumbar spine MRI revealed L4-L5 and L5-S1 mild 23 disc protrusions. MRI of the brain revealed mild volume loss 24 but was otherwise negative (37F/11). Physical examinations revealed hypesthesia on the right side of the body and subtle 25 weakness on the right side, but many examinations revealed 26 few remarkable findings otherwise (see, e.g., 35F/17).

27 The claimant testified to using an assistive device, but the record is inconsistent. In 2018, there are several notes that she 28 was dragging her right leg while walking (8F/14, 17; 9F/25, 1 27). This does not appear to have lasted, as the later walking tests did not reflect this (8F/4, 8; 9F/17, 33, 84; 12F/93; 15F/6, 2 10, 13; 18F/8, 13, 20; 26F/88; 35F/17; 41F/13). In February 3 2019, a functional gait assessment showed normal gait (21F/5). In April 2019, she performed in the normal range with no 4 assistive device (25F/5-6). She reported that she was 'doing 5 much better' with very little dizziness. This was part of a test - she started at 14/30 and improved to 25/30, with a goal of 6 26/30. Most of the results were normal to mild limitations. 7 In November 2019, the claimant was reportedly disabled, able 8 to ambulate short distances with a cane or front wheel walker, 9 and able to stand for 10 minutes (40F/607). However, this appears to be short term as it was only a few days after her 10 gynecological surgery on November 26, 2019, and physical 11 examination was within normal limits (37F).

12 The claimant asserted her hands are bad, with nerve pain and 13 arthritis, and she drops things because of pain and numbness in the hands. However, the objective evidence is not entirely 14 consistent with this assertion. Treatment notes document some instances where her grip strength was not intact (37F/39), but 15 most examinations generally revealed normal (5/5) grip 16 strength in both hands (9F/16; 26F/88; 35F/60). 17 18 (Id. at 30–32.1) 19 The Court finds that the ALJ’s conclusion is adequately supported by the record. 20 (Id.) The record contains a plethora of evidence indicating that Plaintiff is able to work: 21 Plaintiff’s symptoms improved markedly with medication and other conservative 22 treatment; x-rays and MRIs yielded mostly normal results; beyond a diagnosis of 23 hypesthesia, her physical examinations were unremarkable; her use of an assistive device 24 for walking was inconsistent; and most examinations noted her grip strength was normal 25 in both hands. (Id. at 30–32.) 26 The Court also finds that the evidence that the ALJ highlighted provides specific, 27 clear, and convincing reasons for discounting Plaintiff’s testimony. As noted earlier,

28 1 In order to show the depth of the ALJ’s extensive record cites in this portion of the ALJ’s decision, the Court has not omitted internal citations. 1 Plaintiff offered statements that she suffers from a number of disabilities that prevent her 2 from working. (Doc. 13-3 at 30); supra Section III.A. But the ALJ observed, and the Court 3 agrees, that much of the evidence in the record contradicts Plaintiff’s assertions. The ALJ 4 properly highlighted that much of the evidence in the record regarding Plaintiff’s grip 5 strength and her x-ray, MRI, and physical examination results point to limitations no less 6 severe than those articulated in the RFC. (See id. at 31–32 (citing Doc. 13-9 at 438; Doc. 7 13-16 at 1405; Doc. 13-19 at 1818, 1861; Doc. 13-20 at 1955–56, 1984).) Similarly, the 8 ALJ noted a plethora of evidence regarding Plaintiff’s ability to walk without the use of an 9 assistive device that supports his RFC determination. (See Doc. 13-3 at 31 (citing 10 extensively from the record when discrediting Plaintiff’s symptom testimony).) 11 Additionally, the ALJ properly highlighted Plaintiff’s conservative treatment regimen. (Id. 12 at 31.) For example, the use of medications has improved her symptoms. (Id. (citing many 13 examples of Plaintiff’s conservative treatment regimen); see, e.g., Doc. 13-12 at 905.) The 14 Ninth Circuit has noted that “evidence of ‘conservative treatment’ is sufficient to discount 15 a claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 16 742, 751 (9th Cir. 2007) (quoting Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). 17 When discrediting Plaintiff’s symptom testimony, the ALJ’s decision concluded 18 that Plaintiff’s symptom testimony conflicted with her daily living activities; this was error 19 as the ALJ’s decision never discussed which specific activities conflicted with her 20 testimony. (Doc. 13-3 at 30–33.) But this error was harmless. See Marsh v. Colvin, 792 21 F.3d 1170, 1172 (9th Cir. 2015). As noted above, the ALJ provided many other reasons for 22 discrediting Plaintiff’s symptom testimony. Those other reasons provide substantial 23 evidence that supports the ALJ’s evaluation of Plaintiff’s alleged symptoms. Thus, if the 24 ALJ had not mentioned Plaintiff’s daily living activities as a reason for discrediting her 25 symptom testimony, it would still have been reasonable for the ALJ to discredit Plaintiff’s 26 symptom testimony. Therefore, the ALJ’s error was harmless. See Marsh, 792 F.3d at 1173 27 (“ALJ errors in social security cases are harmless if they are ‘inconsequential to the 28 ultimate nondisability determination.’” (quoting Stout v. Comm’r Soc. Sec. Admin., 454 1 F.3d 1050, 1056 (9th Cir. 2006))); see also Carmickle v. Comm’r of Soc. Sec. Admin., 533 2 F.3d 1155, 1162 (9th Cir. 2008) (recognizing harmless error where “two of the ALJ’s [four] 3 reasons supporting his adverse credibility finding [were] invalid.”). 4 Because a substantial portion of the record conflicts with Plaintiff’s symptom 5 testimony, the Court finds that the ALJ did not err in determining that Plaintiff’s symptom 6 testimony was generally not consistent with the record. Moreover, these findings are 7 factual determinations solely within the ALJ’s responsibility and not for this Court to 8 second guess. Andrews, 53 F.3d at 1039. Based on the foregoing, the Court finds that the 9 ALJ provided specific, clear, and convincing reasons to discount Plaintiff’s symptom 10 testimony that were supported by substantial evidence in the record. 11 B. Medical Opinion Evidence 12 Plaintiff argues that the ALJ erred “by purporting to rely on the opinions from 13 nonexamining state agency physicians who reviewed a limited portion of the record and 14 never examined Allen.” (Doc. 14 at 23–25.) Specifically, Plaintiff asserts that (1) it was 15 error for the ALJ to rely on the medical opinions of J. Zuess, M.D., and T. Dupont, M.D., 16 who had never seen Plaintiff and whose opinions did not consider the entire record; (2) the 17 evidence provided supports Plaintiff’s symptom testimony; and (3) the ALJ’s decision 18 lacked an appropriate amount of explanation when determining the persuasive value of the 19 medical opinions.2 (Id. at 23–24.) The Commissioner argues that the ALJ’s analysis of the 20 prior administrative medical findings (“PAMFs”) is supported by substantial evidence. 21 (Doc. 17 at 9–12.) 22 Having reviewed the record, the ALJ determined the persuasive value of Dr. Zuess’ 23 2 The Court notes that the ALJ’s decision also mentions two State agency psychological 24 consultants and their evaluation of Plaintiff’s level of mental impairment. (Doc. 13-3 at 32.) Plaintiff’s Opening Brief (Doc. 14) is ambiguous; it is not immediately clear whether 25 Plaintiff is also challenging the ALJ’s determination regarding the persuasive value of the State agency psychological consultants’ reports. (Id. at 23–25.) Plaintiff’s Reply Brief 26 (Doc. 18) makes no attempt the clarify this ambiguity. (Id.) A close reading of Plaintiff’s Opening Brief reveals that Plaintiff has only challenged the persuasive value that the ALJ 27 assigned Dr. Zuess’ and Dr. Dupont’s medical opinions. (See Doc. 14 at 24 (challenging the medical opinions “that addressed [Plaintiff’s] physical capacities” and only quoting 28 from the portion of the ALJ’s decision that addresses Dr. Zuess’ and Dr. Dupont’s medical opinions).) 1 and Dr. Dupont’s medical opinions in this case: 2 When State agency medical consultants J. Zuess, M.D., and T. 3 Dupont, M.D., reviewed the record, they found the claimant 4 limited to light work: lift and/or carry 20 pounds occasionally, 10 pounds frequently; stand and/or walk about 6 hours in an 8- 5 hour workday; sit more than 6 hours in an 8-hour workday; 6 never climb ladders/ropes/scaffolds; occasionally balance; and avoid concentrated exposure to extreme cold/heat, noise, and 7 hazards. These limitations are persuasive. The doctors 8 supported their assessments with a detailed analysis of the evidence of record. 9

10 . . .

11 In sum, the above residual functional capacity assessment is 12 supported by . . . the prior administrative medical findings from Dr. Zuess and Dr. Dupont . . . . 13

14 (Doc. 15-3 at 32–33 (internal citations omitted).) 15 The law previously distinguished between the opinions of treating physicians, 16 examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 17 830 (9th Cir. 1995). This distinction was known as the “treating physician rule.” See 18 Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001), as amended on reh’g (Aug. 9, 19 2001). “In March of 2017, [t]he Social Security Administration amended their regulations 20 to abrogate the treating physician rule, among other changes.” Alonzo v. Comm’r of Soc. 21 Sec. Admin., No. CV-18-08317-PCT-JZB, 2020 WL 1000024, at *3 (D. Ariz. Mar. 2, 2020) 22 (citing Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 23 5844-01, 2017 WL 168819, at *5852–57 (Jan. 18, 2017)). The new regulations apply to 24 claims filed on or after March 27, 2017. 20 C.F.R. §§ 404.1520c, 416.920c. The new 25 regulations provide that the ALJ “will not defer or give any specific evidentiary weight, 26 including controlling weight, to any medical opinion(s) or prior administrative medical 27 finding(s), including those from your medical sources.” Id. 28 Furthermore, the ALJ will consider all medical opinions according to several 1 enumerated factors, including whether the opinion is supported by objective medical 2 evidence and whether the opinion is consistent with the evidence from other sources. 3 Alonzo, 2020 WL 1000024, at *3. Under the new regulations, the ALJ must consider and 4 explain how well the medical evidence supports the medical opinion and how consistent 5 the medical opinion is with the record, and may, but is not required to, explain how the 6 other factors under § 404.1520c(c)(3)–(5) are considered. 20 C.F.R. § 404.1520c(b)(3). 7 “When the evidence before the ALJ is subject to more than one rational 8 interpretation, [the Court] must defer to the ALJ’s conclusion.” Batson, 359 F.3d at 1198. 9 This is so because “[t]he [ALJ] and not the reviewing court must resolve conflicts in 10 evidence, and if the evidence can support either outcome, the court may not substitute its 11 judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) 12 (citations omitted). 13 Although it was debated for years, recently, the Ninth Circuit definitively ruled that 14 the “specific and legitimate” standard is not the law in Social Security cases where the 15 revised regulations apply. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 16 Specifically, the Ninth Circuit in Woods determined that 17 [t]he revised social security regulations are clearly 18 irreconcilable with our caselaw according special deference to 19 the opinions of treating and examining physicians on account of their relationship with [Plaintiff]. Our requirement that ALJs 20 provide ‘specific and legitimate reasons’ for rejecting a 21 treating or examining doctor’s opinion, which stems from the special weight given to such opinions is likewise incompatible 22 with the revised regulations. Insisting that ALJs provide a more 23 robust explanation when discrediting evidence from certain sources necessarily favors the evidence from those sources— 24 contrary to the revised regulations. 25 26 Id.(quotations and internal citations omitted). Thus, an ALJ need not give specific and 27 legitimate reasons for not crediting the medical opinion of a treating physician. Id. at 791. 28 Substantial evidence supports the persuasive weight that the ALJ assigned Dr. 1 Zuess’ and Dr. Dupont’s medical opinion. (Doc. 13-3 at 32–33); see Trevizo, 871 F.3d at 2 675 (“The ALJ can meet this burden by setting out a detailed and thorough summary of the 3 facts and conflicting clinical evidence, stating his interpretation thereof, and making 4 findings.”) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). Using the 5 standard set forth at 20 C.F.R. § 404.1520c, the ALJ determined that Dr. Zuess and Dr. 6 Dupont supported their medical opinions “with a detailed analysis of the evidence of 7 record.” (Doc. 13-3 at 32.) Thus, the ALJ discussed the supportability of these opinions. It 8 follows that the ALJ’s decision also explains that both doctors’ medical opinions are 9 consistent with the record. (Id.) The Court finds that a reasonable person examining the 10 evidence could draw the same conclusions. The fact that the evidence in the record could 11 be interpreted differently has no effect on this Court’s ruling. See Andrews, 53 F.3d at 12 1039–40 (“The ALJ is responsible for determining credibility, resolving conflicts in 13 medical testimony, and for resolving ambiguities. We must uphold the ALJ’s decision 14 where the evidence is susceptible to more than one rational interpretation.”) (citations 15 omitted). Thus, the ALJ considering Dr. Zuess’ and Dr. Dupont’s medical opinions 16 persuasive was not error. 17 Alternatively, the Court finds that, if the ALJ erred by not explicitly articulating that 18 Dr. Zuess’ and Dr. Dupont’s medical opinions were consistent with the record, such error 19 was harmless. See Marsh, 792 F.3d at 1172. Determining that the doctors’ opinions are 20 persuasive in large part because they are supported by the record and simultaneously 21 concluding that the doctors’ opinions were not consistent with the record would be 22 factually impossible. The ALJ found that the record supported the medical opinions. Thus, 23 it follows that, if the ALJ had felt it necessary to explicitly articulate the doctors’ opinions’ 24 consistency with the record, then the ALJ would have found them consistent with the 25 record. Thus, requiring an explicit finding via the use of “magic language” would have had 26 no effect on the final RFC determination. Therefore, if the ALJ erred, it was harmless. See 27 Marsh, 792 F.3d at 1173 (“ALJ errors in social security cases are harmless if they are 28 ‘inconsequential to the ultimate nondisability determination.’” (quoting Stout, 454 F.3d at 1056)). 2 C. Further Proceedings 3 Finally, Plaintiff requests a remand for further proceedings or a calculation of 4|| benefits pursuant to the credit-as-true rule. (Doc. 14 at 25; Doc. 18 at 9-11.) But the Court is affirming the ALJ’s decision; therefore, the Court denies Plaintiff's request for a remand 6 || without considering the credit-as-true doctrine. See Leon v. Berryhill, 880 F.3d 1041, 1047 7\| (9th Cir. 2017), as amended (Jan. 25, 2018) (A direct award of benefits is proper “only 8 || when the record clearly contradicted an ALJ’s conclusory findings and no substantial evidence within the record supported the reasons provided by the ALJ for denial of || benefits.”’). IV. CONCLUSION 12 Accordingly, 13 IT IS ORDERED that the ALJ’s decision is AFFIRMED. 14 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 15 || accordingly. 16 Dated this 4th day of August, 2022. 17 18 A 19 0 _ James A. Teil Org Senior United States District Judge 21 22 23 24 25 26 27 28

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