Candelaria v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: September 30, 2022
• Docket: 4:21-cv-00279
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF ARIZONA 11 12 Ebony Candelaria, No. CV-21-00279-TUC-JCH (BGM)

13 Plaintiff,

14 v. ORDER

15 Kilolo Kijakazi, Acting Commissioner of Social Security, 16 Defendant. 17 18 Plaintiff Ebony Candelaria (“Plaintiff”) brought this action pursuant to 42 U.S.C. 19 § 405(g), seeking judicial review of a final decision by the Commissioner of Social 20 Security denying her claims for Disability Insurance Benefits ("DIB") under Title II of the 21 Social Security Act. (Doc. 1.) The matter was referred to Magistrate Judge Bruce G. 22 Macdonald for all pretrial proceedings and a report and recommendation in accordance 23 with the provisions of 28 U.S.C. § 636(b)(1) and LR Civ. 72.1 and 72.2. (Doc. 17.) After 24 receipt of the certified administrative record (“AR”), Plaintiff filed her Opening Brief 25 (Doc. 24), the Commissioner of Social Security (“Commissioner”) filed an Answering 26 Brief (Doc. 25), and Plaintiff filed a Reply (Doc. 26). The reference to the Magistrate Judge 27 will be withdrawn. Based on the pleadings and the AR submitted to the Court, the Court 28 denies Plaintiff's Opening Brief and affirms the Commissioner's decision. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 A. Administrative History 3 On February 1, 2019, Plaintiff filed a Title II application for Social Security 4 Disability Insurance Benefits (“DIB”) alleging disability as of April 1, 2016, due to chronic 5 midline low back pain, severe arthritis in back, joint pain left shoulder, high blood pressure, 6 diabetes, muscle inflammation, degeneration of lumbar, bilateral wrist pain, sacroiliac joint 7 dysfunction.1 See Administrative Record (“AR”) 14, 18–19, 114–15, 119–22, 125, 134– 8 36, 140, 143, 145, 157, 172, 224, 226, 239, 243–44, 288, 314. The Social Security 9 Administration denied Plaintiff’s application initially, on reconsideration, and after an 10 administrative hearing. (AR 14, 60–99, 114–32, 157–65, 176–77.) 11 On November 16, 2020, the ALJ issued a decision and concluded Plaintiff was not 12 disabled. (AR 11–27.) Plaintiff requested review before the Appeals Council, which was 13 denied on June 7, 2021, thereby making the ALJ’s decision the final decision of the 14 Commissioner. (AR 1–6.) This appeal followed. 15 B. Plaintiff's Background 16 Plaintiff was thirty (30) years old at the time of the alleged onset of her disability 17 and thirty-five (35) years old at the time of the administrative hearing. (AR 14, 25, 60, 114– 18 15, 119, 122, 132–36, 140, 217, 226, 239, 244, 288, 314.) Plaintiff has a high school 19 education.2 (AR 25, 41, 80–81, 132–33, 224, 244; Doc. 24 at 2.) Prior to her alleged 20 disability, Plaintiff worked as a hair stylist, security guard, courier, and cashier. (AR 76– 21 80, 93, 129, 224, 245, 257–67.) 22 23 1 Plaintiff filed a prior application under Title II and Title XVI on February 4, 2011. (See AR at 15, 35–59, 100–109.) On January 26, 2011, SSA denied this application on initial review. (Id. at 24 15, 103.) In the instant case, the Administrative Law Judge (“ALJ”) found “[t]he presumption of 25 nondisability has been rebutted in this case because there has been new medical and earnings evidence since the prior decision, and the passage of time has changed the relevant time period for 26 evaluating the claimant’s past relevant work.” (Id. at 15.) 27 2 Plaintiff’s testimony and records are unclear regarding her precise level of education. Some forms and testimony reflect that Plaintiff has a high school diploma, but during her most recent hearing 28 before the ALJ, she indicated that she only completed the 11th grade and did not receive a diploma or GED. (Compare AR at 41, 132–33, 224, 244, 2272, with AR at 80–81.) 1 C. The ALJ's Application of the Five-Step Evaluation Process 2 To be found disabled and qualified for Disability Insurance Benefits or 3 Supplemental Security Income, a claimant must be unable “to engage in any substantial 4 gainful activity by reason of any medically determinable physical or mental impairment 5 which can be expected to result in death or which has lasted or can be expected to last for 6 a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(a) & 7 1382c(a)(3)(A). The same five-step sequential evaluation governs eligibility for benefits 8 under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; 9 Bowen v. Yuckert, 482 U.S. 137, 140–142 (1987). The five-step process requires the 10 claimant to show (1) she has not worked since the alleged disability onset date, (2) she has 11 a severe physical or mental impairment, and (3) the impairment meets or equals a listed 12 impairment or (4) her residual functional capacity (“RFC”) precludes her from doing her 13 past work. If at any step the Commissioner determines that a claimant is or is not disabled, 14 the inquiry ends. If the claimant satisfies her burden through step four, the burden shifts to 15 the Commissioner to show at step five that the claimant has the RFC to perform other work 16 that exists in substantial numbers in the national economy. Lester v. Chater, 81 F.3d 821, 17 828 n. 5 (9th Cir. 1995); Bowen, 482 U.S. at 146 n. 5 (describing shifting burden at step 18 five). 19 In this case, at step one the ALJ found that Plaintiff had not engaged in substantial 20 gainful activity from January through March 2017, after her alleged onset date of April 1, 21 2016, and that “there has been a continuous 12-month period(s) during which the claimant 22 did not engage in substantial gainful activity.” (AR 17.) At step two, the ALJ found that 23 Plaintiff had the following severe impairments: degenerative disc disease of the lumbar 24 25 spine with sacroiliac joint dysfunction; degenerative disc disease of the cervical spine; 26 tendinosis of the left shoulder; myofascial pain dysfunction syndrome; and obesity. (AR 27 18.) At step three, the ALJ found that Plaintiff’s impairments did not meet or medically 28 equal the severity of one of the impairments listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1. 1 (AR 20.) Between steps three and four, the ALJ conducted an RFC assessment,3 and 2 concluded that Plaintiff: 3 4 has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except [she] can stand or walk six hours in an eight-hour 5 workday, and sit six hours in an eight-hour workday; can push and pull same as can lift and carry; can frequently climb ramps and stairs, kneel, and 6 crouch; can occasionally climb ladders, robes, or scaffolds, and crawl; and 7 can occasionally reach overhead with the left upper extremity

8 (AR 21.) After determining Plaintiff’s RFC, the ALJ found at step four that Plaintiff has 9 no past relevant work. (AR 25.) At step five, relying on testimony from the VE, the ALJ 10 concluded that there are jobs that exists in significant numbers in the national economy that 11 Plaintiff can perform. (AR 26.) 12 13 II. STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial 15 of social security benefits if the ALJ's findings are based on legal error or not supported by 16 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 17 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). Substantial 18 evidence is more than a mere scintilla, but less than a preponderance, Connett v. Barnhart, 19 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted), and is defined as “such relevant 20 evidence as a reasonable mind might accept as adequate to support a conclusion,” Orn v. 21 Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 22 (9th Cir. 2005)). “The ALJ is responsible for determining credibility, resolving conflicts in 23 medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 24 (9th Cir. 2001) (citation omitted). “The court will uphold the ALJ’s conclusion when the 25 26 3 "Between steps three and four of the five-step evaluation, the ALJ must proceed to an 27 intermediate step in which the ALJ assesses the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). A plaintiff's residual functional capacity is what 28 she can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989). 1 evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 2 F.3d 1035, 1038 (9th Cir. 2008). 3 III. PLAINTIFF’S CLAIMS 4 In her Opening Brief, Plaintiff presents two issues for review. (Opening Brief, Doc. 5 24 at 5–15.) She contends that the ALJ failed: (1) to articulate clear and convincing reasons 6 to discount Plaintiff's symptom testimony; and (2) to properly analyze supportive opinion 7 evidence of record. Id. Based on the alleged error, Plaintiff requests that the ALJ’s decision 8 be reversed and the matter remanded for further proceedings. Id. at 14. 9 IV. ANALYSIS 10 A. Plaintiff's Symptom Testimony 11 i. Legal Standard 12 An ALJ performs a two-step analysis to evaluate a claimant’s testimony. Garrison 13 v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (citations omitted). First, the ALJ must 14 evaluate the objective medical evidence of the underlying impairment which could be 15 reasonably expected to cause the alleged symptoms or pain, and second, if there is no 16 evidence of malingering, the ALJ can reject the claimant’s testimony as to the symptoms’ 17 severity by offering specific, clear and convincing reasons. Id. at 1015 (citations omitted). 18 The ALJ may consider a claimant’s activities of daily living in determining whether those 19 activities contradict her testimony about her symptoms or functional limitations. See Orn 20 v. Astrue, 495 F.3d 625, 639 (9th Cir. 2017); see also Rounds v. Comm’r Soc. Sec. Admin., 21 807 F.3d 996, 1006 (9th Cir. 2015) (when assessing credibility, the ALJ “may consider, 22 among other factors, . . . ‘the claimant’s daily activities.’”) (internal citation omitted). The 23 ALJ may not, however, discount testimony “solely because” the claimant’s symptom 24 testimony “is not substantiated affirmatively by objective medical evidence.” Robbins v. 25 Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 26 ii. Analysis 27 Under Step Two, the ALJ found that Plaintiff's eye condition and mental 28 impairments were not severe impairments and had no effect on Plaintiff's RFC. (AR 18.) 1 Plaintiff argues that her symptom testimony supports a finding of disabling conditions. 2 (Doc. 24 at 6.) To establish whether [s]he qualifies for benefits, [Plaintiff] has the burden 3 of proving an ‘inability to engage in any substantial gainful activity by reason of any 4 medically determinable physical or mental impairment which . . . has lasted or can be 5 expected to last for a continuous period of not less than 12 months.” Batson v. Comm’r of 6 Soc. Sec. Admin., 359 F.2d 1190, 1193–94 (9th Cir. 2004) (quoting 42 U.S.C. § 7 423(d)(1)(A)). “An impairment or combination of impairments is not severe if it does not 8 significantly limit your physical or mental ability to do basic work activities.” 20 C.F.R. § 9 404.1522(a). “The mere existence of an impairment is insufficient proof of a disability.” 10 Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (citations omitted). In evaluating 11 mental impairments, their severity is determined by rating the degree of functional 12 limitation resulting from the impairment. 20 C.F.R. § 404.1520a(d). If the degrees of 13 limitation are “none” or “mild” the impairment will be deemed non-severe absent evidence 14 that indicates there is more than a minimal limitation on the ability to do basic work 15 activities. 20 C.F.R. § 404.1520a(d)(1). Here, the ALJ properly assessed that Plaintiff’s 16 visual and mental impairments were not severe and Plaintiff has failed to meet her burden 17 to prove that these impairments are disabling. Matthews, 10 F.3d at 680. 18 a. Visual Impairments 19 As to visual impairments, the ALJ found:

20 Treatment notes indicate the claimant experiencing cataracts, 21 with some eye swelling and blurriness, but treatment notes also indicate that, even without correction, the claimant’s vision is 22 20/30 in the right eye and 20/40 in the left eye, and she has had 23 normal ophthalmic evaluations (B33F; B37F; B38F). The record does not indicate diabetic vision complications (B33F; 24 B37F). 25 … 26

27 There is sufficient evidence in the record to establish these conditions as medically determinable impairments. However, 28 these impairments are not considered severe, as the record does 1 not establish they cause more than minimal limitations in the claimant’s ability to perform basic work activities, and have 2 lasted or are expected to last for a period of 12 months or more. 3 The undersigned has considered all of the claimant’s medically determinable impairments, including those that are not severe, 4 when assessing the claimant’s residual functional capacity. 5 (AR 18.) 6 The ALJ thoroughly reviewed Plaintiff’s medical records regarding her eye 7 examinations. On August 30, 2019, Dr. Martin reported that Plaintiff did not have any 8 diabetic retinopathy, and she had a normal ophthalmic evaluation without explanation for 9 visual disturbances and headaches that she reported. (See AR 18 (citing AR 2665)). Dr. 10 Martin’s examination was unremarkable. (AR 18 (citing AR 2665–70)). On November 13, 11 2019, Plaintiff was seen by Dr. McCafferty as an “emergency work in.” (See AR 18 (citing 12 AR 2731–33)). Dr. McCafferty noted cataracts, suspected glaucoma, and dry eye in both 13 eyes, and no diabetic retinopathy. Id. Dr. McCafferty prescribed daily eye drops and 14 directed Plaintiff to follow up in a year. Id. Following her visit with Dr. McCafferty in 15 2019, Plaintiff did not seek any further treatment for her eyes. There is no evidence that 16 Plaintiff required further treatment for her eyes after receiving a prescription for daily eye 17 drops. The ALJ’s finding that Plaintiff’s vision impairments were not severe and caused 18 no more than minimal limitations in the claimant’s ability to perform basic work activities 19 is supported by substantial evidence. See Mitchell v. Saul, 2021 WL 3032667, at *8 (D. 20 Nev. July 16, 2021) (ALJ is allowed to consider whether a “claimant’s statements 21 concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely 22 consistent with the medical evidence and other evidence in the record.”); see also 23 Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (quoting Orn v. Astrue, 495 F.3d 24 625, 638 (9th Cir. 2007) (“[I]f a claimant complains about disabling pain but fails to seek 25 treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such failure 26 as a basis for finding the complaint unjustified or exaggerated[.]”). 27 b. Mental Limitations 28 The ALJ evaluated Plaintiff’s mental impairments following the requirements set 1 forth in 20 C.F.R. § 404.1520a and the Listing of Impairments (20 C.F.R. Pt. 404, Subpt. 2 P, App. 1 § 12.00). (AR at 19.) The ALJ determined that Plaintiff suffered only “mild” 3 limitations in the four broad functional areas known as the “paragraph B” criteria— 4 understanding, remembering, or applying information; interacting with others; 5 concentrating , persisting, or maintaining pace; and adapting or managing oneself. Id.; 20 6 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00.A.2.b. The ALJ reviewed Plaintiff’s medical 7 records, as well as the medical opinion evidence of record. AR at 19–20. As a result, the 8 ALJ concluded that “[b]ecause the claimant’s medically determinable mental impairments 9 cause no more than ‘mild’ limitation in any of the functional areas and the evidence does 10 not otherwise indicate that there is more than a minimal limitation in the claimant’s ability 11 to do basic work activities, they are nonsevere.” (AR at 20 (emphasis in original) (citing 12 20 C.F.R. § 404.1520a(d)(1))). 13 Plaintiff asks this Court to reweigh the evidence and find that her reported mental 14 health symptoms are distracting to the point of disability. (Doc. 24 at 8.) She argues that at 15 individual counseling appointments, she consistently presented with symptoms of 16 depression and anxiety and continued to have an anxious mood after increasing 17 medications. (Doc. 24 at 8.) Moreover, she argues, "[t]here is no indication that the ALJ 18 found mental [] impairments improved with treatment." (Doc. 24 at 11.) This is incorrect. 19 The ALJ observed “the claimant has shown some responsiveness to psychological 20 medications,” and considered Plaintiff's reported improvement: 21 22 At an April 2019 consultative psychological examination, the claimant reported feelings of sadness, though she reported this 23 is helped with medication (B16F). On examination, the 24 claimant displayed mental status findings grossly within normal limits, including appropriate appearance and grooming, 25 intermittent eye contact, cooperative behavior, adequate 26 speech, normal thought process, adequate registration and recall, adequate attention and concentration, and adequate 27 ability to follow instructions (B16F). In addition to 28 medications, the claimant has had ongoing treatment in counseling (B25F). In counseling, the claimant has repeatedly 1 reported doing well, and that she spends a lot of time taking care of her children, and she has displayed grossly normal 2 findings on mental status examination, including full affect, 3 clear speech, logical thought process, normal thought content, normal cognition and intelligence, and normal insight and 4 judgment (B25F/28, 33, 45, 49, 59, 63). 5

6 (AR 19 (emphasis added)). Moreover, the ALJ relied on the State Agency examiners' 7 opinions, (See AR 19, citing (AR 114–131; AR 134–151)), and objective medical evidence, 8 (See AR 19, citing (AR 1232–37; AR 2205–2470), to properly disregard her symptom 9 testimony. (AR 19 ("The consultants support their opinions with specific references to the 10 record noting, for example, that the claimant has shown some responsiveness to 11 psychological medications. Additionally, the record is most consistent with no more than 12 mild psychological limitations, and no severe mental limitations, as evidenced by the 13 claimant persistently displaying mental status findings grossly within normal limits.")). 14 Plaintiff seems to argue that the ALJ unreasonably found that her daily activities 15 were inconsistent with her allegations of disabling symptoms. 4 (Doc. 24 at 8–10.) The ALJ 16 found Plaintiff could “care for children with disabilities, live with others, use public 17 transportation, count change, manage her own finances, read, write, and listen to music for 18 pleasure, spend time with family, and get along with authority figures[.]” (AR at 23 19 (citations omitted)). Plaintiff asserts that “the ALJ did not discuss some important 20 qualifications to several of these activities and failed to present a clear and convincing 21 reason to disregard symptoms testimony, evening considering activities in the aggregate.” 22 (Doc. 24 at 9.) In response, the Commissioner relies in-part on Molina v. Astrue, 674 F.3d 23 1104 (9th Cir. 2012), to argue that the ALJ may draw reasonable inferences from the 24 record. (Doc. 25 at 10.) 25 26 4 A claimant's reported daily activities can form the basis for an adverse credibility determination if they consist of activities that contradict the claimant's “other testimony” or if those activities are 27 transferable to a work setting. Orn, 495 F.3d at 639; see also Fair v, Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (daily activities may be grounds for an adverse credibility finding “if a claimant is 28 able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting.”). 1 Molina involved a plaintiff who testified that she was incapable of being around 2 people without suffering debilitating panic attacks. 674 F.3d at 1113. The Ninth Circuit 3 found the ALJ reasonably concluded that certain activities, including, “walking her two 4 grandchildren to and from school, attending church, shopping, and taking walks” 5 undermined her symptom testimony. Id. In particular, her activities involved a degree of 6 human interaction that was analogous to that required by her past relevant work 7 environment where she worked in a large room occupied by only four or five other people, 8 with whom she did not generally need to interact. Id. 9 Here, the ALJ did not indicate how such activities were transferable to Plaintiff's 10 work conditions as to the asserted mental limitations. Any such error, however, was 11 harmless considering the ALJ also relied on Plaintiff's self-reported improvement, the State 12 Agency examiner's opinions, and objective medical evidence to properly disregard her 13 symptom testimony. If the "ALJ's credibility finding is supported by substantial evidence 14 in the record, [the court] may not engage in second-guessing." See Thomas v. Barnhart, 15 278 F.3d 947, 959 (9th Cir. 2002). When the evidence is susceptible to more than one 16 rational interpretation, as here, it is the Commissioner's conclusion that must be upheld. Id. 17 The ALJ properly discounted Plaintiff's symptom testimony. 18 B. Medical Opinion Evidence 19 i. NP Confino's Opinion 20 On August 6, 2020, NP Confino completed a Mental Residual Functional Capacity 21 Assessment. (AR 2631–33.) NP Confino diagnosed Plaintiff with major depressive 22 disorder, generalized anxiety disorder, and post-traumatic stress disorder. (AR 2631.) NP 23 Confino further noted that Plaintiff “has a specific learning disability in language delay, 24 reading, writing, and math affects depression.” (AR 2631.) 25 NP Confino opined that Plaintiff had marked limitations in her ability to understand, 26 remember, or apply information and adapt or manage herself; and extreme limitations in 27 her ability to interact with others, and concentrate, persist, or maintain pace. (AR 2631.) 28 NP Confino reasoned that constant migraines, depression, and high blood pressure make it 1 difficult to Plaintiff to concentrate; a learning disability makes it difficult for her to 2 understand, remember, or apply information, and Plaintiff has sleep apnea; she does not 3 make or have friends, has an estranged relationship with family, trust issues, and is afraid 4 of not fitting in; Plaintiff has severe migraines, depression, anxiety, chronic pain, and out 5 of control blood pressure which makes it difficult for her to perform even the smallest tasks 6 and requires assistance from family; and Plaintiff has difficulty adapting to changes in the 7 environment, chronic pain, depression, and anxiety, which make it difficult for her to 8 manage herself on a daily basis, she needs constant reminders from family to take her 9 medications, certain activities, homework from therapy, and doctor appointments, and to 10 do things for her children, she is very forgetful. (AR 2631.) 11 NP Confino opined that Plaintiff’s symptoms would interfere with her ability to 12 work. Specifically, NP Confino indicated that Plaintiff's ability to perform work-related 13 functions would be less than 10% (percentage in a total work-month) with respect to her 14 ability to: understand and remember detailed instructions, interact appropriately with the 15 general public, maintain socially appropriate behavior and to adhere to basic standards of 16 neatness and cleanliness, carry out very short and simple instructions, maintain attention 17 and concentration for extended periods, perform activities within a schedule, maintain 18 regular attendance, and be punctual within customary tolerance, sustain an ordinary routine 19 without special supervision, work in coordination with or in proximity to others without 20 being distracted by them, make simple work-related decisions, complete a normal workday 21 and workweek without interruptions from psychologically based symptoms and to perform 22 at a consistent pace without an unreasonable number and length of rest periods, respond 23 appropriately to changes in the work setting, and travel in unfamiliar places or use public 24 transportation. (AR 2632.) NP Confino also indicated that Plaintiff's ability to perform 25 work-related functions would be between 10%–15% (percentage in a total work-month) 26 with respect to her ability to: remember locations and work-like procedures, understand 27 and remember very short and simple instructions, get along with coworkers or peers 28 without distracting them or exhibiting behavioral extremes, carry out detailed instructions, 1 and set realistic goals or make plans independently of others. (AR 2632.) Lastly NP 2 Confino indicated that Plaintiff's ability to perform work-related functions would be 3 between 15%– 20% (percentage in a total work-month) with respect to her ability to ask 4 simple questions or request assistance, accept instructions and respond appropriately to 5 criticism from supervisors, and be aware of normal hazards and take appropriate 6 precautions. (AR 2632.) 7 NP Confino reported that Plaintiff had been with Community Partners for 8 approximately one and a half years (1.5) and was with COPE community services before 9 that. (AR 2633.) NP Confino indicated that Plaintiff had experienced an exacerbation of 10 symptoms and a deterioration in functioning when faced with changes in environment or 11 demands that were not already a part of her life. (AR at 2633.) NP Confino observed that 12 Plaintiff’s symptoms increase with any changes in the environment; her symptoms increase 13 in depression, anxiety, and stress; she has difficulty adjusting to any change; she isolates 14 when faced with a room full of people; her symptoms increase including rapid heartbeat, 15 chest pain, shallow breathing, will get angry and lash out; Plaintiff is unable to go to 16 restaurants or malls because she feels everyone is looking at her—she tries but can only 17 stay ten (10) to twenty (20) minutes then has to leave because she feels like the walls are 18 closing in on her. (AR at 2633.) 19 ii. Legal Standard 20 Because Plaintiff filed her application after March 27, 2017, medical source 21 opinions are evaluated under the revised regulations. Under the revised regulations, an 22 ALJ's decision to discredit any medical opinion “must simply be supported by substantial 23 evidence.” Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). There is no “inherent 24 persuasiveness” in either a claimant's own medical sources or government consultants. Id. 25 at 791 (citing Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. 26 Reg. 5844, 5844 (Jan. 18, 2017) (codified at 20 C.F.R. pts. 404 & 416)). Instead, the ALJ 27 must consider all the medical opinions in the record and evaluate each medial opinion's 28 persuasiveness using factors. 20 C.F.R. § 416.920c. The two most important factors are 1 “supportability” and “consistency.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The ALJ 2 must articulate “how [he or she] considered the supportability and consistency of factors 3 for a medical source's medical opinions... in [his or her] decision.” 20 C.F.R. §§ 4 404.1520c(b)(2), 416.1520c(b)(2). 5 With regard to supportability, the “more relevant the objective medical evidence 6 and supporting explanations presented by a medical source are to support his or her medical 7 opinion(s), the more persuasive the medical opinions ... will be.” 20 C.F.R. §§ 8 404.1520c(c)(2), 416.920c(c)(2). As to consistency, the “more consistent a medical 9 opinion(s) is with the evidence from other medical sources in the claim, the more 10 persuasive the medical opinion(s) ... will be.” 20 C.F.R. §§ 404.1520c(c)(2), 11 416.920c(c)(2). The ALJ is not required to explain how she considered other factors, unless 12 the ALJ finds that two or more medical opinions about the same issue are equally well- 13 supported and consistent with the record but not identical. See 20 C.F.R. §§ 14 404.1520c(b)(3), 416.1520c(b)(3). Even if there is some error, the Court “may not reverse 15 an ALJ's decision on account of an error that is harmless.” Molina, 674 F.3d at 1111. Courts 16 look to the whole record to determine whether an error alters the outcome of a case. Id. at 17 1115. “[T]he burden of showing that an error is harmful normally falls upon the party 18 attacking the agency's determination.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 19 1055 (9th Cir. 2006) (internal citation omitted). 20 iii. Analysis 21 The ALJ "found unpersuasive" NP Confino's medical opinion finding:

22 Justine Confino, NP, one of the claimant’s treatment providers, 23 opined that the claimant had marked limitations in understanding, remembering, and applying information, and in 24 adapting and managing oneself, and extreme limitations in 25 interacting with others and concentrating, persisting, and maintaining pace, and provides “percent of the day” values for 26 the claimant’s activities of daily living, consistent with the 27 opinions on broad areas of mental functioning (B30F). This opinion lacks supportability and consistency with the record. 28 Nurse Confino supports her opinion with an in-person treating 1 relationship with the claimant. However, though she provides some explanation for the opined limitations, Nurse Confino 2 does not directly link specific objective medical findings with 3 limitations of the opined severity. Additionally, the record is most consistent with no more than mild psychological 4 limitations, and no severe mental limitations, as evidenced by 5 the claimant persistently displaying mental status findings grossly within normal limits (B16F; B25F). Accordingly, 6 because this opinion lacks supportability and consistency with 7 the record, it is found unpersuasive. 8 (AR 20 (emphasis added)). 9 As an initial matter, the ALJ thoroughly reviewed the evidence in the record to 10 support the RFC determination and noted the supportability and consistency factors in 11 evaluating NP Confino's opinion. Specifically, the ALJ compared NP Confino's opinions 12 with her treatment observations which generally showed Plaintiff's normal mental status. 13 (AR 19–20 citing (AR 2274–77 (PNP Confino treatment notes dated 3/26/2020, "Thought 14 content: Within normal limits[;] Cognition: Within normal limit[;] Intelligence estimate: 15 Average[;] Insight: Within Normal Limits[;] Judgment: Within normal limits"); (AR 2299– 16 2303 (PNP Confino treatment notes dated 1/29/2020, "Thought process: Logical[;] 17 Perception: Within normal limits[;] Cognition: Within normal limit[;] Intelligence 18 estimate: Average[;] Insight: Within Normal Limits[;] Judgment: Within normal limits"); 19 (AR 2367–2371 (PNP Confino treatment notes dated 10/10/2019, "Thought process: 20 Logical[;] Perception: Within normal limits[;] Cognition: Impairment of: Short term Long 21 Term Memory[;] Intelligence estimate: Average[;] Insight: Within Normal Limits[;] 22 Judgment: Within normal limits")). The ALJ concluded that NP Confino's opinion lacked 23 support, or were otherwise inconsistent, with her own treatment notes and the longitudinal 24 record. (See AR 20.) Importantly, Plaintiff fails to address the ALJ's finding that NP 25 Confino failed to "directly link specific objective medical findings with limitations of the 26 opined severity." (AR 20.) 27 Moreover, the ALJ did not reject NP Confino's opinions solely on the internal 28 inconsistency of her treatment notes. Rather, the ALJ also contrasted NP Confino's opinion 1 || with the examining physician records by Amy D’Ambrosio, Psy.D. ("Dr. D'Ambrosio"). 2|| (AR 20 (citing BI6F, Dr. D'Ambrosio's Psychological Evaluation)). Dr. D’Ambrosio || performed a clinical interview, administered a Mini Mental Status Exam (“MMSE”), and 4|| reviewed Plaintiff's medical record, including an Adult Function Report. (AR at 1232.) In 5 || a separate paragraph, the ALJ found, "Dr. D’Ambrosio supports her opinion with an in- 6 || person examination of the [Plaintiff], noting mental status findings grossly within normal 7\|| limits. Additionally, the record is most consistent with no more than mild psychological 8 || limitations, and no severe mental limitations, as evidenced by the [Plaintiff] persistently 9|| displaying mental status findings grossly within normal limits (B16F; B25F)." (AR 19.) || Plaintiff essentially asks the Court to reweigh NP Confino's opinion more favorably to her, but Plaintiff's alternate interpretation is not enough to assign error to the ALJ’s findings. 12 || The Court will not reweigh the evidence. Where “the evidence can support either outcome, 13 || the court may not substitute its judgment for that of the ALJ.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing Matney vy. Sullivan, 981 F.2d 1016, 1019 (9th Cir. || 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). The Court finds 16]| that the ALJ’s findings well supported by the record. 17] V. ORDER 18 Based on the foregoing, 19 IT IS ORDERED WITHDRAWING the Court’s referral of this matter to 20|| Magistrate Judge Bruce G. Macdonald. 21 IT IS ORDERED AFFIRMING the decision of the Commissioner. 22 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment 23 accordingly and terminate this action. 24 Dated this 30th day of September, 2022. 25 □ 26 es 27 onorable John C. Hinderaker 3 United States District Judge

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