Arnott v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: March 31, 2023
• Docket: 3:21-cv-08205
• Status: Unknown

Opinion

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

9 Shawnee Arnott, No. CV-21-08205-PCT-DJH

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Shawnee Arnott (“Plaintiff”) seeks judicial review of the Social Security 16 Administration (“SSA”) Commissioner’s decision denying her applications for SSA 17 disability benefits. Plaintiff filed her Opening Brief (Doc. 19).1 The Court has reviewed 18 the briefs and the Administrative Record (Doc. 15-3, “R.”). For the reasons below, the 19 Court affirms the Administrative Law Judge’s (“ALJ”) March 2021 decision (R. 15-3 at 20 54) finding Plaintiff is not disabled. 21 I. Background 22 Two decisions are at issue here: the ALJ’s September 2012 decision and August 23 2016 decision. 24 A. The September 2012 decision 25 Plaintiff first filed an application for disability insurance benefits on December 15, 26 2010. (R. 15-4 at 4). Plaintiff alleged a disability onset date of October 1, 2010. (Id.) The 27 claim was denied on December 21, 2010, and again denied upon reconsideration on 28 1 The matter is fully briefed. (See Docs. 22; 23). 1 September 21, 2011. (Id.) After a hearing on August 29, 2012, an ALJ issued a decision 2 on September 15, 2012, (“September 2012 decision”) determining Plaintiff was not 3 disabled because she could perform past relevant work. (Id. at 11). 4 B. The August 2016 decision 5 On February 19, 2014, Plaintiff filed a second application for disability insurance 6 benefits with an alleged onset date of September 16, 2012. (R. 15-3 at 42, 45). An ALJ 7 issued a decision on August 24, 2016, (“August 2016 decision”) finding Plaintiff had 8 provided new and material evidence to rebut the presumption of continuing non-disability 9 and declined to adopt the former ALJ’s residual functional capacity (“RFC”) 10 determination. The ALJ nonetheless adopted the former ALJ’s findings as to Plaintiff’s 11 age, education, and vocational background because there was no new and material 12 evidence. (Id. at 69). The ALJ ultimately found Plaintiff was not disabled because she 13 could perform past relevant work. (Id. at 81). Plaintiff appealed. 14 C. The February 2020 decision 15 The SSA Appeals Council remanded the case for a hearing held on December 3, 16 2019, to reassess Plaintiff’s RFC and past relevant work during the period at issue. (Id. at 17 92). An ALJ issued a decision on February 7, 2020, (“February 2020 decision”) again 18 determining Plaintiff was not disabled. The ALJ found that Plaintiff could perform past 19 relevant work, and Plaintiff did not rebut the presumption of continuing non-disability as 20 established by the ALJ’s initial finding of disability in the August 2016 decision. (Id. at 21 110). Plaintiff appealed. 22 The Appeals Council remanded the case for another hearing held on March 2, 2021, 23 to further evaluate Plaintiff’s claim about the September 2012 decision. (Id. at 121). The 24 Appeals Council noted the February 2020 decision only considered the August 2016 25 decision findings and conclusions, not the September 2012 decision. (Id.) The Appeals 26 Council thus found further evaluation was needed as to the findings and conclusions 27 reached in the September 2012 decision, particularly regarding Plaintiff’s RFC and ability 28 to perform past relevant work. (Id.) 1 D. Current Appeal—The March 2021 decision 2 An ALJ issued a decision on March 8, 2021 (“March 2021 decision”) finding the 3 former ALJ properly considered the rebuttable presumption of continuing non-disability 4 established by the September 2012 decision under Chavez v. Bowen. (R. 15-3 at 42); 844 5 F.2d 691, 693 (9th Cir. 1988) (explaining an ALJ’s prior finding of nondisability creates 6 the presumption of continuing nondisability in a subsequent decision). The ALJ adopted 7 the prior ALJ’s September 2012 RFC determination but declined to adopt the prior findings 8 on Plaintiff’s ability to perform relevant work. (R. 15-3 at 42). Nonetheless, the ALJ found 9 Plaintiff was not disabled because although Plaintiff’s “additional limitations did not allow 10 [her] to perform the full range of sedentary work,” there were still a significant number of 11 jobs in the national economy Plaintiff could have performed. (Id. at 52). Plaintiff appealed. 12 The Appeals Council denied Plaintiff’s request for review. (Id. at 1). This appeal followed. 13 In the March 2021 decision, the ALJ concluded that Plaintiff was not disabled from 14 September 16, 2012, through December 31, 2015. (Id. at 53). The ALJ first found Plaintiff 15 had not overcome the presumption of continuing non-disability that arose from the 16 previous ALJ’s non-disability determination. (Id. at 43). The ALJ nonetheless performed 17 the full customary analysis of Plaintiff’s disability claim for the unadjudicated period. (Id. 18 at 17–26.) The ALJ found that Plaintiff “did not have an impairment or combination of 19 impairments that met or medically equaled the severity of one of the listed impairments in 20 20 CFR Part 404, Subpart P, Appendix 1.” (Id. at 47). 21 Next, the ALJ calculated Plaintiff’s RFC, finding: “[Plaintiff] had the [RFC] to 22 perform sedentary work . . . [t]he claimant could have occasionally climbed ramps and 23 stairs, but could never have climbed ladders, ropes or scaffolds. She could have 24 occasionally balanced, stooped, knelt, crouched, and crawled. The claimant could have 25 frequently reached overhead bilaterally. She must have avoided extreme cold, vibration 26 and hazards including moving machinery and unprotected heights. (Id.) Based on this 27 RFC, the ALJ did not adopt the previous September 2012 ALJ’s finding that Plaintiff can 28 perform “past relevant work.” (Id. at 52). The ALJ nevertheless concluded, based on the 1 vocational experts’ testimony at the 2019 and 2021 hearings, that Plaintiff “had acquired 2 work skills from past relevant work that were transferable to other occupations with jobs 3 that existed in significant numbers in the national economy.” (Id. at 53). The ALJ therefore 4 determined Plaintiff was not disabled. (Id.) 5 Plaintiff raises two issues on appeal: (1) whether the ALJ erred in finding Plaintiff 6 failed to rebut the presumption of continuing non-disability; and (2) whether substantial 7 evidence supports the ALJ’s evaluation of the medical opinions. (Doc. 19 at 4). 8 II. Standard of Review 9 In determining whether to reverse an ALJ’s decision, the district court reviews only 10 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 11 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 12 determination only if it is not supported by substantial evidence or is based on legal error. 13 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 14 that a reasonable person might accept as adequate to support a conclusion when considering 15 the record as a whole. Id. To determine whether substantial evidence supports a decision, 16 the Court must consider the record as a whole and may not affirm simply by isolating a 17 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 18 susceptible to more than one rational interpretation, one of which supports the ALJ’s 19 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 20 (9th Cir. 2002) (citations omitted). 21 To determine whether a claimant is disabled for purposes of the Act, the ALJ 22 follows a five-step process. 20 C.F.R. § 404.1520(a)–(g). The claimant bears the burden 23 of proof on the first four steps, but the burden shifts to the Commissioner at step five. 24 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the ALJ determines whether 25 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. § 26 404.1520(a)(4)(i). Second, the ALJ determines whether the claimant has a “severe” 27 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). 28 Third, the ALJ considers whether the claimant’s impairment or combination of 1 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 2 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 3 found to be disabled. Id. At step four, the ALJ assesses the claimant’s residual functional 4 capacity and determines whether the claimant is still capable of performing past relevant 5 work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, 6 where he determines whether the claimant can perform any other work in the national 7 economy based on the claimant’s residual functional capacity, age, education, and work 8 experience. 20 C.F.R. § 404.1520(a)(4)(v). If the ALJ determines no such work is 9 available, the claimant is disabled. Id. 10 Res judicata applies to administrative decisions but is applied less rigidly than to 11 judicial proceedings. Chavez, 844 F.2d at 694. Relevant here, a presumption of continuing 12 nondisability arises from the first ALJ’s findings of nondisability. Id. at 693. “[T]o 13 overcome the presumption . . . a plaintiff “must prove ‘changed circumstances’ indicating 14 a greater disability.” Id. These circumstances may include “[a]n increase in the severity 15 of the claimant’s impairment” or “the existence of an impairment not considered in the 16 previous application.” Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995). Even if a 17 plaintiff rebuts the presumption, the previous ALJ’s findings regarding a plaintiff’s RFC, 18 education, and work experience should not be disturbed unless the claimant rebuts the 19 presumption with evidence of changed circumstance or new and material evidence. 20 Chavez, 844 F.2d at 694. 21 It is well established that harmless error applies to Social Security cases. Molina v. 22 Astrue, 674 F. 3d 1104, 1115 (9th Cir. 2012). “[A]n ALJ’s error is harmless where it is 23 inconsequential to the ultimate nondisability determination.” Id.; see also Treichler v. 24 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (same). The Court must 25 therefore review the entire record to determine whether an error altered the outcome of the 26 case. Id. 27 III. Discussion 28 Plaintiff raises two main arguments as to the March 2021 decision. First, Plaintiff 1 argues the ALJ erred by finding Plaintiff did not rebut the presumption of continuing non- 2 disability that arose from the previous ALJ’s findings in the September 2012 decision. 3 (Doc. 19 at 7). Second, Plaintiff argues the ALJ erred by affording little weight to the 4 opinions of her treating physicians, Dr. Richard Melde and Dr. Christine Briones, because 5 the ALJ did not provide clear and convincing reasons for her rejection. (Id. at 14-15). The 6 Court will address Plaintiff’s arguments in turn. 7 A. The ALJ’s determination that Plaintiff had not overcome the presumption of 8 continuing non-disability 9 The first issue on appeal concerns the ALJ’s finding that Plaintiff had not shown “a 10 changed circumstance material to the determination of disability and the presumption of 11 continuing nondisability.” (R. 15-3 at 43). Plaintiff argues the ALJ’s application of the 12 presumption was improper because Plaintiff showed changed circumstances as evidenced 13 by changing age categories and a new severe impairment that the prior ALJ did not 14 consider—namely, her idiopathic peripheral neuropathy of the bilateral lower extremities. 15 (Doc. 19 at 11). Plaintiff also argues the ALJ erred in reopening the prior ALJ’s findings 16 in the September 2012 decision regarding her past relevant work because the ALJ did not 17 state any new and material evidence that allowed her to reopen such findings. (Id. at 9). 18 Last, Plaintiff argues the ALJ’s hypothetical to the vocational expert did not include 19 Plaintiff’s inability to tolerate work which involved vibration. (Id. at 12). 20 1. The ALJ’s application of the Chavez Presumption 21 At the outset, the Court finds the ALJ’s application of the presumption of continuing 22 nondisability was harmless. Treichler, 775 F.3d at 1099. Although the ALJ stated that the 23 Chavez presumption applied and that Plaintiff had not proved changed circumstances, the 24 ALJ did not actually apply the presumption. (R. 15-3 at 43). Indeed, the ALJ stated she 25 “[n]evertheless, consistent with the Appeal Council order, . . . further considered the 26 [plaintiff’s] past relevant work and [RFC].” (Id. at 42). Her decision reflects as much: she 27 proceeded to evaluate Plaintiff’s claim, gave “careful consideration to the entire record,” 28 analyzed the medical opinions, and addressed Plaintiff’s daily living activities. (Id. at 47– 1 53). The ALJ ultimately adopted the prior ALJ’s findings regarding Plaintiff’s sedentary 2 RFC. (Id. at 43). The ALJ stated: “[t]he medical evidence of record does not show that a 3 more restrictive residual functional capacity is warranted. Accordingly, the undersigned 4 adopts the findings of the prior ALJ with regard to a sedentary residual functional 5 capacity.” (Id.) The ALJ declined, however, to adopt the prior ALJ’s findings as to 6 Plaintiff’s ability to work. She stated, “[d]ue to differences in vocational expert testimony 7 regarding classification of the claimant’s past relevant work, the undersigned has not 8 adopted the prior ALJ’s finding with regard to her ability to perform that work activity.” 9 (Id.) 10 Accordingly, the Court finds the ALJ’s finding that the presumption applies was 11 harmless error. This is because although the ALJ found Plaintiff did not rebut the 12 presumption, her finding was inconsequential because it did not end or control her 13 evaluation of Plaintiff’s claim. Cf. Cha Yang v. Comm’r of SSA, 488 F. App’x 203, 204 14 (9th Cir. 2012) (ALJ’s misapplication of Chavez presumption was harmless); McGlothen 15 v. Colvin, 2015 WL 5706186, *3 (C.D. Cal. 2015) (ALJ’s “invocation of res judicata” was 16 harmless error because the “ALJ proceeded with a review of the medical evidence—a 17 review that approximated the traditional five-step approach”). 18 Even though the Court finds the ALJ’s application of the presumption was harmless, 19 it will nevertheless consider Plaintiff’s specific claims as to why the ALJ’s application of 20 the presumption was erroneous. 21 2. Plaintiff’s Age Category and Additional Severe Impairment 22 Plaintiff argues the ALJ erred in concluding Plaintiff did not show changed 23 circumstances to rebut the presumption of continuing disability because Plaintiff changed 24 age categories after her date last insured of December 31, 2015. (Doc. 19 at 11). Plaintiff 25 also argues her new impairment established changed circumstances precluding the 26 presumption of continuing non-disability. (Id. at 11). 27 As to Plaintiff’s age category, the ALJ noted Plaintiff “was born on September 20, 28 1960 and was 55 years old, which is defined as an individual closely approaching advanced 1 age, on the date last insured. [Plaintiff] subsequently changed age category to advanced 2 age (20 CFR 404.1563).” (R. 15-3 at 52). It is true that under this timeline Plaintiff’s age 3 category would be “advanced age” and not “closely approaching advanced age.” In the 4 same paragraph, however, the ALJ states that Plaintiff changed her age category to 5 “advanced age” under 20 CFR 404.1563. (Id.) The Court acknowledges the ALJ could 6 have been more precise with her language. However, it is also clear to the Court that the 7 ALJ considered both age categories because she specifically referred to Medical- 8 Vocational Rules 201.15 (closely approaching advanced age) and Rule 201.07 (advanced 9 age) when she determined there was transferable work Plaintiff could have performed 10 between her alleged onset date and her date last insured. (R 15-3 at 53). 11 As to Plaintiff’s additional impairment, it is true that the ALJ found a new 12 impairment that the prior ALJ did not consider. (Compare R. 15-3 at 45 (finding that 13 Plaintiff’s lumbar and cervical degenerative disc disease and idiopathic peripheral 14 neuropathy of the bilateral lower extremities are severe impairments), with R. 15-4 at 95 15 (finding that Plaintiff’s only severe impairment was lumbar and cervical degenerative disc 16 disease)). But as discussed, an “ALJ’s error is harmless where it is inconsequential to the 17 ultimate nondisability determination.” Molina, 674 at 1115. Accordingly, the Court must 18 review the entire record to determine whether an error altered the outcome of the case. Id. 19 Here, the error did not. 20 Plaintiff says this new impairment establishes changed circumstances precluding 21 the presumption of continuing non-disability. (Doc. 19 at 11). Even if the ALJ committed 22 an error by incorrectly stating Plaintiff’s new impairment did not establish “changed 23 circumstances,” this error was harmless because the ALJ explicitly considered Plaintiff’s 24 new impairment in her subsequent analysis. (R. at 45-54). Thus, any error committed by 25 the ALJ in mischaracterizing that Plaintiff had not established “changed circumstances” 26 because of her new impairment was harmless. See Patrick v. Comm’r of Soc. Sec. Admin., 27 2023 WL 2180724, at *3 (D. Ariz. Feb. 23, 2023) (finding the ALJ’s misstatement that 28 plaintiff had no new impairments and thus did not show any changed circumstances was 1 harmless because the ALJ accounted for plaintiff’s new impairments in her disability 2 determination). 3 3. The ALJ’s reopening of the prior ALJ’s findings in the September 2012 4 decision regarding Plaintiff’s past relevant work and the ALJ’s hypothetical to the vocational expert 5 6 Plaintiff next argues the ALJ erred in reopening the prior ALJ’s findings in the 7 September 2012 decision regarding Plaintiff’s past relevant work because the ALJ did not 8 provide any new and material evidence that allowed her to reopen such findings. (Doc. 19 9 at 9). Plaintiff also argues the ALJ’s hypothetical to the vocational expert did not include 10 Plaintiff’s inability to tolerate work which involved vibration. (Id. at 12). Plaintiff 11 contends the ALJ erred because her ultimate RFC finding included this limitation. (Id.) 12 First, the Court finds the ALJ did not err in reopening Plaintiff’s past relevant work 13 because the Appeals Council instructed the ALJ to do so. In its remand order the Appeals 14 Council directed the ALJ to consider the “findings and conclusions reached in the 15 September 15, 2012, hearing decision, particularly regarding the claimant’s residual 16 functional capacity and ability to perform past relevant work.” (R. 15-4 at 121). The Court 17 therefore finds the ALJ was not required to state new and material evidence for reopening 18 those findings because the Appeals Council ordered her to do so. 19 The Court also rejects Plaintiff’s complaint that the hypothetical the ALJ posed to 20 the vocational expert did not include Plaintiff’s inability to tolerate work which involved 21 vibration. Under the hypothetical, the vocational expert testified the three occupations 22 Plaintiff could perform did not include conditions involving vibrations. The occupations 23 included a sorter, an appointment clerk, and a data entry clerk. (R. 15-3 at 53). For each 24 occupation, the Department of Transportation (“DOT”) listings state: “Vibration: Not 25 Present - Activity or condition does not exist.” See Sorter, DOT Code No. 209.687-022, 26 1991 WL 671812; Appointment clerk, DOT Code No. 237.367-010, 1991 WL 672185; 27 Data entry clerk, DOT Code No. 203.582.054, 1991 WL 671700. Because these 28 occupations do not involve vibrations, the Court finds the hypothetical posed by the ALJ 1 was harmless. Treichler, 775 F.3d at 1099. 2 B. Whether the ALJ provided specific and legitimate reasons supported by 3 substantial evidence for affording little weight to Plaintiff’s treating physicians’ opinions 4 5 Plaintiff argues the ALJ erred by affording little weight to the opinions of her 6 treating physicians, Dr. Melde and Dr. Briones.2 (Doc. 19 at 14). 7 1. Dr. Melde’s Opinion 8 Dr. Melde opined that Plaintiff could perform an extremely limited range of work, 9 including standing/walking less than one hour out of an eight-hour day, sitting less than 10 one hour out of an eight-hour day, and never being able to claim, balance, crouch, or crawl. 11 (R. at 50). The ALJ gave little weight to Dr. Melde’s opinion because it was inadequately 12 supported by clinical or other objective findings. (Id.) 13 Where, as here, an ALJ evaluates medical opinion evidence, “[t]he ALJ must 14 consider all medical opinion evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 15 Cir. 2008). The sources of medical opinions are ranked: Those who have treated a claimant 16 are treating physicians. Those who examined but did not treat the claimant are examining 17 physicians. And those who neither examined nor treated the claimant are nonexamining 18 physicians. Lester, 81 F.3d at 830. If a treating physician’s opinion is not given controlling 19 weight, then the ALJ must consider the relevant factors listed in 20 C.F.R. § 20 404.1527(c)(1)–(6) and determine the appropriate weight to give the opinion. Orn, 495 21 F.3d at 632. If a treating physician’s opinion is contradicted by another doctor’s opinion, 22 the ALJ cannot reject the treating physician’s opinion unless he provides specific and 23 legitimate reasons that are based on substantial evidence in the record.3 Bayliss v. 24 2 Plaintiff argues the higher clear and convincing standard applies because the state 25 agency’s non-examining consultants stated they adopted the prior ALJ’s findings. (Id.) Plaintiff provides no authority to support this proposition and the Court accordingly rejects 26 it.

27 3 The Court recognizes that new regulations regarding the consideration of medical opinion evidence in disability claims eliminate the deference previously accorded to treating 28 physicians. 20 C.F.R. § 404.1520c(a). Because Plaintiff filed this claim before March 27, 2017 (R. 15-3 at 42), however, the prior regulatory scheme applies. 20 C.F.R. § 404.1527. 1 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 2 Here, the ALJ did not err by giving little weight to Dr. Melde’s opinion. This is 3 because substantial evidence supports the ALJ’s conclusion that the objective medical 4 evidence inadequately supported Dr. Melde’s opinion. Indeed, the ALJ explained that Dr. 5 Melde’s own records provided “scant evidence” for the reasons Plaintiff would be limited 6 to standing/walking for only less than one hour per day. (R. 15-3 at 50). The ALJ then 7 discussed Dr. Melde’s treating notes, explaining that the findings he noted were “minimal, 8 consisting of a decreased range of motion, pain, and tenderness.” (Id.) 9 To be sure, as Plaintiff points out, the ALJ acknowledged that “greater objective 10 signs and findings are documented elsewhere in the record,” but the ALJ explained those 11 findings nonetheless fail to explain the reason Plaintiff would be “unable to sit for less than 12 one hour in a workday.” (Id.) She explained that the opinion is inconsistent with the 13 objective evidence, which showed Plaintiff had “mostly stable examinations with normal 14 gait, strength and sensation.” (Id.) Given the contrast between the overall record, including 15 Dr. Melde’s own treatment records, the ALJ assigned little weight to his opinions. (Id.) 16 The Court finds the ALJ provided specific and legitimate reasons supported by substantial 17 evidence for affording Dr. Melde’s opinion little weight. 18 2. Dr. Briones’ Opinion 19 Plaintiff next argues the ALJ erred by giving little weight to the opinion of her 20 treating physician, Dr. Briones. (Doc. 19 at 19). Plaintiff argues the ALJ’s rationale that 21 Dr. Briones did not treat Plaintiff before Plaintiff’s date last insured was not a valid reason 22 to afford little weight to her opinion. (Id.) 23 In December 2018, after Plaintiff’s date last insured, Dr. Briones opined that 24 Plaintiff could perform an extremely limited range of work, including standing/walking 25 less than one hour out of an eight-hour day, sitting less than three hours out of an eight- 26 hour day, could lift and carry less than 5 pounds, and would be absent from work more 27 than four times a month. (R. 15-12 at 2002). The ALJ gave little weight to Dr. Briones’ 28 opinion because apart from a routine blood draw at Dr. Melde’s request, there was no 1 indication that Dr. Briones otherwise treated Plaintiff before her date last insured. (R. 15- 2 3 at 51). The ALJ pointed to Dr. Briones’ treatment records from August 2016 through 3 2019 and the lack of interaction with Plaintiff before her date of last insured, December 31, 4 2015. (Id.) And even the records that show a “date of service” in 2015 mostly contain 5 Plaintiff’s history and medication prescribed and specify start and end dates in 2018 and 6 2019. (R. 15-13 at 2366-2400). Last, the ALJ states “[Dr. Briones] provided no 7 explanation . . . as to the basis of her opinion[.]” (R. at 15-3 at 51). Plaintiff says the ALJ 8 erred because she relied on a “single factor” to afford little weight to Dr. Briones opinion, 9 e.g., the lack of explanation Dr. Briones provided in her opinion. It is true the ALJ 10 highlighted Dr. Briones’ scarce explanation as to the basis of her opinion. (R. at 15-3 at 11 51). It is also true, however, that this was not the sole reason the ALJ afforded little weight 12 to Dr. Briones opinion. Indeed, the ALJ included this reason after she highlighted Dr. 13 Briones lack of treatment and interaction with Plaintiff during the relevant period. The 14 Court therefore finds the ALJ provided specific and legitimate reasons for affording little 15 weight to Dr. Briones’ opinion.4 16 IV. Conclusion 17 The Court concludes the ALJ’s finding that Plaintiff failed to rebut the presumption 18 of continuing non-disability was, at most, harmless error. This is because the ALJ did not 19 functionally apply the presumption and instead proceeded to evaluate Plaintiff’s claim on 20 the merits. The Court also finds the ALJ provided specific and legitimate reasons for 21 affording little weight to Plaintiff’s treating physicians’ opinions. Therefore, the ALJ did

22 4 Plaintiff inserts one sentence that the ALJ’s “lay interpretation” of the consultative examiner Dr. An Nguyen’s examination is “specious” because Dr. Nguyen explained 23 Plaintiff’s memory scores were worse than predicated. (Doc. 19 at 20). Although true, the ALJ explained the reasons she found those test scores did not support a finding of no more 24 than mild limitations. (R. 15-3 at 46). Specifically, she pointed to Plaintiff’s intelligence testing scores, which indicated the average range. (Id.) She acknowledged Plaintiff’s 25 immediate memory score was in the low range but noted that Plaintiff’s overall memory test was in the average range. (Id.) Because Plaintiff scored “well within the range of 26 normal cognitive functioning,” coupled with Dr. Nguyen’s own observation that Plaintiff had “only mild depressive symptoms,” the ALJ concluded there was minimal support for 27 moderate limitations. (Id.) Plaintiff may take issue with the ALJ’s lay interpretation, but it is precisely the ALJ’s responsibility to provide an independent analysis of the medical 28 evidence and weigh the opinions accordingly. See Schott v. Comm’r of Soc. Sec. Admin., 2019 WL 5782324, at *5 (D. Ariz. Nov. 6, 2019). 1} not err in her March 2021 decision finding Plaintiff is not disabled because her decision 2 || was based on substantial evidence. See Orn, 495 F.3d at 630. 3 Accordingly, 4 IT IS HEREBY ORDERED that the decision of the ALJ is affirmed. The Clerk 5 || of Court is directed to enter judgment accordingly and dismiss this action. 6 Dated this 31st day of March, 2023. 7 8 fe □□ 7 norable'Dian¢g/4. Hunfetewa 10 United States District Fudge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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