Carmen Claudia Salgado v. Andrew M. Saul

• Court: District Court, C.D. California
• Decided: July 9, 2021
• Docket: 2:20-cv-06918
• Status: Unknown

Opinion

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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 CARMEN CLAUDIA S.,1 ) NO. CV 20-6918-KS 11 Plaintiff, )

12 v. ) MEMORANDUM OPINION AND ORDER ) 13 ) ANDREW M. SAUL, Commissioner 14 ) of Social Security, ) 15 Defendant. ) 16 _________________________________ )

17 18 INTRODUCTION 19 20 Carmen S. (“Plaintiff”) filed a Complaint on July 31, 2020, seeking review of the denial 21 of her applications for a period of disability, Disability Insurance Benefits (“DIB”), and 22 Supplemental Security Income (“SSI”). On August 18, 2020, the parties consented, pursuant 23 to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. (Dkt. 24 Nos. 10, 11, 12.) On June 30, 2021, the parties filed a Joint Stipulation (“Joint Stip.”). (Dkt. 25 No. 22.) Plaintiff seeks an order reversing the Commissioner’s decision and remanding for 26 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(B) and the recommendation of the 28 Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 further proceedings. (Joint Stip. at 32.) The Commissioner requests that the ALJ’s decision 2 be affirmed. (Id.) The Court has taken the matter under submission without oral argument. 3 4 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 5 6 On May 18, 2017, Plaintiff, who was born on January 15, 1969, protectively filed 7 applications for SSI and DIB.2 (See Joint Stip. at 2; Administrative Record (“AR”) 18, 198- 8 211.) Plaintiff alleged disability commencing January 1, 2015, due to: “strokes, diabetes, 9 sclerosis spine, carpal tunnel, nerve pain on feet, acid reflux, depression, damaged eye caused 10 by diabetes.” (AR 199, 245.) Plaintiff previously worked as a teacher aide I (Dictionary of 11 Occupational Titles (“DOT”) 099.327-010) and a merchandise deliverer (DOT 299.477-010). 12 (AR 31, 63-64; see also id. 247.) The Commissioner denied Plaintiff’s applications initially 13 (AR 18, 106-07), and, on December 28, 2107, Plaintiff requested a hearing (id. at 116). On 14 May 29, 2019, Administrative Law Judge Paul Coulter (the “ALJ”) held a hearing. (Id. 40.) 15 Plaintiff, who was represented by counsel, Steven Gollub, a medical expert (the “ME”), and 16 Kristan Cicero, a vocational expert (the “VE”), testified at the hearing. (Id. 40-67.) On June 17 12, 2019, the ALJ issued an unfavorable decision, denying Plaintiff’s applications for SSI and 18 DIB. (Id. 18-33.) On June 8, 2020, the Appeals Council denied Plaintiff’s request for 19 review. (Id. 1-5) 20 21 SUMMARY OF ADMINISTRATIVE DECISION 22 23 The ALJ found that Plaintiff met the insured status requirements of the Social Security 24 Act through December 31, 2017. (AR 20.) The ALJ found that Plaintiff had not engaged in 25 substantial gainful activity since the alleged onset date of January 1, 2015. (AR 20.) The ALJ 26

27 2 Plaintiff was 45 years old on the alleged onset date and thus met the agency’s definition of a younger person. See 20 C.F.R. §§ 404.1563(c), 416.963(c). She subsequently changed age categories, and now, at age 52, she is classified as a 28 person “closely approaching advanced age.” (Joint Stip. at 2); see also 20 C.F.R. §§ 404.1563(d), 416.963(d). 1 determined that Plaintiff had the following severe impairments: “diabetes mellitus with 2 diabetic retinopathy and neuropathy; hypertension; dizziness/vertigo/labyrinthitis; left carpal 3 tunnel syndrome; degenerative disease; left hip bursitis; obesity; major depressive disorder; 4 generalized anxiety disorder; post-traumatic stress disorder (PTSD); and borderline to low 5 average range intellectual functioning.” (AR 20.) After specifically considering listings 1.00 6 (regarding the musculoskeletal system), 4.00 (regarding the cardiovascular system), 9.00 7 (regarding endocrine disorders), and 11.00 (regarding the neurological system), the ALJ 8 concluded that Plaintiff did not have an impairment or combination of impairments that met 9 or medically equaled the severity of any impairments listed in 20 C.F.R. part 404, subpart P, 10 appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). 11 (AR 21-24.) The ALJ determined that, during the relevant period, Plaintiff had the residual 12 functional capacity (“RFC”) to perform less than a full range of light work3 in accordance with 13 the following limitations: 14 15 [S]he can lift, carry, push, or pull 20 pounds occasionally and 10 pounds 16 frequently; stand/walk for about 6 hours out of 8; sit for about 6 hours out of 8; 17 occasional postural activities; frequent reaching, handling, and fingering; no 18 unprotected heights, no hazardous mechanical devices; no extreme temperatures; 19 avoid concentrated exposure to vibrations; can understand, remember, and carry 20 out simple job instructions; can maintain attention and concentration to perform 21 non-complex routine tasks in a work environment free of fast-paced production 22 requirements; can have occasional interaction with coworkers and supervisors, 23 and no direct interaction with the general public; and can work in an environment 24 with occasional changes to the work setting. 25 26 3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing 27 up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 28 20 C.F.R. §§ 404.1567, 416.967. 1 (AR 24.) 2 3 The ALJ found that Plaintiff was unable to perform her past relevant work. (AR 31.) 4 However, he also found that, given Plaintiff’s age, education, work experience, and residual 5 functional capacity, Plaintiff could perform jobs that exist in significant numbers in the 6 national economy, including the representative occupations of cleaner (DOT 323.687-014), 7 marker (DOT 209.587-034), and routing clerk (DOT 222.687-022). (AR 32.) Accordingly, 8 the ALJ determined that Plaintiff had not been under a disability, as defined in the Social 9 Security Act, from the alleged onset date of January 1, 2015 through the date of his decision. 10 (AR 33.) 11 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to determine 15 whether it is free from legal error and supported by substantial evidence in the record as a 16 whole. Ahearn v. Saul, 988 F.3d 1111, 1115, 1116 (9th Cir. 2021); Orn v. Astrue, 495 F.3d 17 625, 630 (9th Cir. 2007). Substantial evidence is “more than a mere scintilla,” but less than a 18 preponderance: it is “such relevant evidence as a reasonable mind might accept as adequate 19 to support a conclusion.” Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154 (2019); 20 Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014). “Even when the 21 evidence is susceptible to more than one rational interpretation, we must uphold the ALJ’s 22 findings if they are supported by inferences reasonably drawn from the record.” Molina v. 23 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 24 25 Although this Court cannot substitute its discretion for the Commissioner’s, the Court 26 nonetheless “must assess the entire record, weighing the evidence both supporting and 27 detracting from the agency’s conclusion.” Ahearn, 988 F.3d at 1115; Lingenfelter v. Astrue, 28 504 F.3d 1028, 1035 (9th Cir. 2007). “The ALJ is responsible for determining credibility, 1 resolving conflicts in medical testimony, and for resolving ambiguities.” Ahearn, 988 F.3d at 2 1115 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). 3 4 The Court will uphold the Commissioner’s decision when the evidence is susceptible to 5 more than one rational interpretation. Ahearn, 988 F.3d at 1115-16; Burch v. Barnhart, 400 6 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the 7 ALJ in her decision “and may not affirm the ALJ on a ground upon which [s]he did not 8 rely.” Orn, 495 F.3d at 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 9 2003). The Court will not reverse the Commissioner’s decision if it is based on harmless 10 error—that is, if the error is “‘inconsequential to the ultimate nondisability determination,’ or 11 if despite the legal error, ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. 12 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal citations omitted). 13 14 DISCUSSION 15 16 There are two issues in dispute: (1) whether the ALJ properly determined that Plaintiff 17 had no medically required use of a walker; and (2) whether the ALJ properly considered the 18 consultative examiner’s opinion regarding Plaintiff’s inability to handle stress. (Joint Stip. at 19 11.) 20 21 I. Issue 1: The ALJ’s Determination that Plaintiff Had No Medically Required Use 22 of a Walker 23 24 A. Arguments of the Parties 25 26 Plaintiff’s first contention is that the ALJ’s determination that Plaintiff did not require a 27 hand-held assistive device for mobility—namely, a walker—is not supported by substantial 28 evidence in the record. (Joint Stip. at 13.) Plaintiff further contends that the ALJ failed to 1 properly develop the record regarding Plaintiff’s need for the walker and should have 2 recontacted the physician who prescribed the walker if the record was inadequate or 3 ambiguous. (See Joint Stip. at 15) (citing, inter alia, Mayes v. Massanari, 276 F.3d 453, 459- 4 60 (9th Cir. 2001)). 5 6 Defendant asserts that the ALJ’s determination that Plaintiff did not require a walker is 7 supported by substantial evidence in the record. (Joint Stip. at 16.) Defendant also asserts 8 that, in contravention of Social Security Ruling (“SSR”) 96-9p, Plaintiff identifies no 9 documentation to support her claim that her walker was medically required. (Joint Stip. at 10 17.) 11 12 In her Reply, however, Plaintiff points to notes from Dr. Elias Ayoub, an ear, nose, and 13 throat (“ENT”) specialist, in which Dr. Ayoub advised Plaintiff “to use walker” due to her 14 complaints of dizziness. (Joint Stip. at 19.) Plaintiff reiterates that, if the ALJ could not 15 decipher Dr. Ayoub’s note(s), the ALJ “should have reached out to Dr. Ayoub to ascertain 16 whether there is a need for a walker.” (Joint Stip. at 19.) 17 18 B. Applicable Law 19 20 At step four of the sequential analysis, claimants bear the burden of showing that they 21 can no longer perform their past relevant work. Pinto v. Massanari, 249 F.3d 840, 845 (9th 22 Cir. 2001). Although the burden lies with the claimant, the ALJ must make specific findings 23 regarding the plaintiff’s residual functional capacity—that is, what she can still do despite her 24 physical, mental, nonexertional, and other limitations. See id. at 845; Mayes v. Massanari, 25 276 F.3d 453, 460 (9th Cir. 2001). Ultimately, an ALJ must include a limitation or restriction 26 in a claimant’s RFC—and in the hypothetical posed to the VE—where the record provides 27 substantial evidence of the limitation. See Taylor v. Commissioner, 659 F.3d 1228, 1235 (9th 28 Cir. 2011); Palomares v. Astrue, 887 F. Supp.2d 906, 919 (N.D. Cal. 2012); Brinks v. Comm’r 1 SSA, 343 Fed. Appx. 211, 212 (9th Cir. 2009); Dupree v. Astrue, No. CV 10-3146-JCG, 2011 2 WL 651886 (C.D. Cal. Feb. 10, 2011). However, “[w]hen there is ambiguous evidence or 3 when the record is inadequate to allow for proper evaluation of the evidence,” the ALJ has an 4 independent “duty to fully and fairly develop the record and to assure that the claimant’s 5 interests are considered.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); 6 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (internal quotation marks and 7 citation omitted). 8 9 In the specific context of a hand-held assistive device, SSR 96-6p provides that, for the 10 Commissioner to find that the device is “medically required,” “there must be medical 11 documentation establishing the need for a hand-held assistive device to aid in walking or 12 standing, and describing the circumstances for which it is needed (i.e., whether all the time, 13 periodically, or only in certain situations; distance and terrain; and any other relevant 14 information).” SSR 96-6p. Social Security Rulings do not have the force of law but constitute 15 the agency’s interpretations of the statute it administers and its own regulations and, as such, 16 are binding upon the agency. Brown-Hunter, 806 F.3d at 493; Holohan v. Massanari, 246 17 F.3d 1195, 1202-03 n. 1 (9th Cir. 2001); Chavez v. Dep’t of Health & Human Servs., 103 F.3d 18 849, 851 (9th Cir. 1996). 19 20 C. Discussion 21 22 The critical question is whether Plaintiff’s use of a walker met the agency’s definition 23 of “medically required” and, if so, under what circumstances was it “required.” As stated 24 above, Plaintiff points to an October 2, 2017 note from Dr. Ayoub, an ENT specialist, which 25 Plaintiff characterizes as advising Plaintiff “to use walker” due to her complaints of dizziness. 26 (Joint Stip. at 19) (citing AR 909). Plaintiff contends that, if the ALJ could not decipher the 27 notation, which is only barely legible, the ALJ had a duty to recontact Dr. Ayoub for 28 clarification. (Joint Stip. at 19.) For the reasons stated below, the Court agrees. 1 1. Relevant Portions of the Administrative Record 2 3 Plaintiff’s son, Andrew A. Thornton, reported in a June 7, 2017 Adult Function Report 4 that Plaintiff “need[ed] help constantly due to dizziness, falling, and loss of vision.” (AR 257.) 5 Plaintiff completed her own Adult Function Report on the same day and similarly reported 6 experiencing “dizz[i]ness to the point where I’m falling down & feel like I’m going to pass 7 out.” (AR 265.) 8 9 At her August 17, 2017 consultative examination with Dr. Seung Ha Lim, a board 10 eligible internist, Plaintiff reported that she “sometimes gets . . . dizziness.” (AR 622.) Dr. 11 Lim observed that Plaintiff had a normal gait and balance and her range of motion in the lower 12 extremities was within normal limits bilaterally. (AR 624, 625.) Dr. Lim stated that Plaintiff 13 “does not require the use of assistive devices for ambulation.” (AR 625.) 14 15 One month later, on September 29, 2017, Plaintiff saw Dr. Ernest A. Bagner III, a board 16 eligible psychiatrist, for a consultative psychiatric examination. (AR 629-633.) Dr. Bagner 17 noted that Plaintiff “walk[ed] slowly with a walker.” (AR 629.) Plaintiff stated that her 18 conditions included dizziness. (AR 629.) 19 20 On October 2, 2017, Plaintiff saw Dr. Ayoub, an E.N.T. specialist, for “dizziness with 21 loss of balance.” (AR 908-09.) Plaintiff reported having “vertigo off and on for 2 years.” 22 (AR 908.) Although difficult to read, some of Dr. Ayoub’s writing on the October 2, 2017 23 treatment note could be construed as directing Plaintiff “to use walker.” (AR 909.) The record 24 reflects that Plaintiff continued to see Dr. Ayoub for follow up visits on March 4, 2019, May 25 23, 2018, September 24, 2018, December 6, 2017, January 17, 2018. (AR 902-04.) However, 26 Dr. Ayoub’s notes concerning these visits are entirely illegible. (Id.) Included among Dr. 27 Ayoub’s treatment notes is the November 24, 2017 letter from Miwako Hisagi, Ph.D., and 28 Sherwin A. Basil, a ASHA certified audiologist and speech-language pathologist with the 1 Riverview Hearing, Speech & Language Centers, which states that Plaintiff was diagnosed 2 with labyrinthitis, went to the emergency room for severe vertigo in August 15, 2017, and two 3 days after the ER visit had a car accident due to vertigo accompanied by the temporary loss of 4 eyesight. (AR 907.) 5 6 On November 16, 2017, during the course of Plaintiff’s treatment with Dr. Ayoub, 7 Plaintiff underwent a consultative psychological evaluation with Danita Stewart, a licensed 8 clinical psychologist, who observed that Plaintiff “ambulated with the use of a walker” and 9 “state[d] that she has been using the walker for the past few months due to vertigo.” (AR 635, 10 636.) 11 12 One year later, in October 2018 and February 2019, Plaintiff attended appointments with 13 Cardiovascular Medical Associates and was encouraged to exercise for at least 30 minutes 5- 14 6 days per week. (AR 790 (October 5, 2018 appointment), 794 (February 7, 2019 15 appointment).) There are no references to a walker. (See generally id.) 16 17 At her November 17, 2018 consultative psychological evaluation with Cyrus Riahi, 18 Ed.S, Ph.D., a clinical psychologist, Plaintiff “was walking using a walker” (AR 727) and 19 reported that she needed help with “walking” (AR 728). Dr. Riahi described Plaintiff’s 20 medical history as including a diagnosis for labyrinthitis and vision problems. (AR 728.) 21 22 Three days later, at Plaintiff’s November 20, 2018 consultative examination with Dr. 23 Soheila Benrazavi, a board-certified Diplomate with the American Board of Internal 24 Medicine, Dr. Benrazavi observed that Plaintiff was able to ambulate without the use of an 25 assistive device. (AR 737.) There is no mention in Dr. Benrazavi’s report that Plaintiff came 26 to the examination with an assistive device, reported being prescribed an assistive device, or 27 reported using one in the past. (See generally id. 734-738.) 28 1 Six months later, at the May 29, 2019 hearing, Plaintiff testified that her labyrinthitis 2 and dizziness prevented her from working because, at least twice a week, she experienced 3 sudden periods of severe vertigo that rendered her blind—sometimes for as long as 45 minutes. 4 (AR 57, 61.) Plaintiff testified that, since approximately September 2017, she had used a 5 walker for ambulation. (AR 49-50.) Plaintiff could not recall which doctor prescribed the 6 walker (AR 50), but she testified that it was either Dr. Asorin or her ENT specialist Dr. Ayoub. 7 (AR 63.) Plaintiff testified that she was prescribed the walker “because of the labyrinthitis 8 because I keep falling,” and she explained that the pills prescribed by the ENT specialist for 9 her labyrinthitis were not effective and she had stopped taking them. (AR 50.) 10 11 The ME testified at the hearing that there was a November 2017 report for dizziness and 12 that, although Plaintiff’s dizziness was “a predominantly a subjective complaint,” it was 13 “mentioned more than once” in the treatment notes. (AR 44.) The ME did not propose a 14 limitation to ambulation with the aid of an assistive device. (AR 45.) Instead, he opined that 15 Plaintiff could, inter alia, “lift and carry ten pounds frequently and 20 occasionally” and 16 “standing and walking can be done six hours of an eight-hour day” with only occasional 17 balancing. (AR 45.) Plaintiff’s counsel asked the ME if he saw any evidence of a need for a 18 walker or a prescription for it. (AR 46.) The ME said that he had not—despite “look[ing] 19 around”— but he “imagined” that, if a walker was prescribed, “it was to address [Plaintiff’s] 20 subjective complaint of dizziness.” (AR 46.) Neither Plaintiff’s counsel nor the ALJ 21 specifically asked the ME about Dr. Ayoub’s October 2017 treatment note referring to a 22 walker. (See generally AR 43-47.) 23 24 2. Analysis 25 26 “It is the ALJ’s duty to investigate the facts and develop the arguments both for and 27 against granting benefits.” Sims v. Apfel, 530 U.S. 103, 110-11 (2000). Accordingly, an ALJ 28 has a “duty to fully and fairly develop the record” and “assure that [a] claimant’s interests are 1 considered.” Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (citation 2 omitted). However, because the burden is on the claimant to produce evidence in support of 3 her disability claim, see Mayes, 276 F.3d at 459 (as amended), the “ALJ’s duty to develop the 4 record further is triggered only when there is ambiguous evidence or when the record is 5 inadequate to allow for proper evaluation of the evidence.” McLeod v. Astrue, 640 F.3d 881, 6 885 (9th Cir. 2010) (as amended May 19, 2011) (citation omitted); accord Tonapetyan, 242 7 F.3d at 1150. 8 9 Plaintiff contends that Dr. Ayoub’s treatment notes show that the use of a walker was 10 “medically required” due to Plaintiff’s recurring dizziness. Plaintiff points to a largely 11 illegible treatment note written by Dr. Ayoub that appears to refer to the use of a walker. 12 Although Plaintiff saw Dr. Ayoub for treatment for several months following the possible 13 prescription of a walker, none of Dr. Ayoub’s treatment notes are decipherable. Given that 14 the critical evidence to determining whether, and under what circumstances, a walker was 15 “medically required” is illegible, the record is necessarily inadequate to allow for a proper 16 evaluation of the evidence concerning Plaintiff’s impairments. Therefore, the ALJ had a duty 17 to recontact Dr. Ayoub to obtain a legible copy or translation of his treatment notes, and his 18 failure to do so constitutes reversible error. Cf. Carlson v. Colvin, No. 19 215CV01085MJPDWC, 2016 WL 2753913, at *7 (W.D. Wash. Apr. 20, 2016) (ordering that, 20 on remand, the ALJ should determine if the record needs to be further developed given the 21 illegibility of some of the treatment notes), report and recommendation adopted, No. 22 215CV01085MJPDWC, 2016 WL 2739592 (W.D. Wash. May 11, 2016); Williams v. Colvin, 23 No. 15-CV-05352 JRC, 2015 WL 7018742, at *3 (W.D. Wash. Nov. 10, 2015) (“the 24 physician’s documentation is illegible and, therefore, inadequate to allow for proper 25 evaluation of the medical evidence”); Mansour v. Astrue, No. ED CV 07–851–PLA, 2009 WL 26 272865, *7 (C.D. Cal. Feb. 2, 2009) (finding that the ALJ’s finding that treatment notes were 27 illegible should have triggered the ALJ’s duty to seek further development of the record). 28 Further, because the inclusion of a walker in Plaintiff’s RFC could have changed the VE’s 1 testimony and/or resulted in a limitation to sedentary work, the ALJ’s error is not harmless. 2 Accordingly, the matter must be REMANDED to the ALJ in order to obtain a legible copy or 3 translation of Dr. Ayoub’s treatment notes and determine whether Dr. Ayoub provided 4 documentation establishing that a walker was “medically required.” 5 6 II. Issue 2: The ALJ’s Consideration of the Consultative Examiner’s Opinion 7 Regarding Plaintiff’s Inability to Handle Stress 8 9 A. Arguments of the Parties 10 11 Plaintiff’s second argument is that the ALJ improperly disregarded the conclusions of 12 “the consultative examiner”—whom Defendant identifies as psychologist Danita Stewart 13 (Joint Stip. at 27) (citing AR 640)—that Plaintiff would have “a marked inability to deal with 14 the usual stressors of competitive workplace setting” and “would likely manifest repeated 15 episodes of emotional deterioration affecting her functioning in difficult situations and when 16 adjusting to changes in a workplace setting.” (Joint Stip. at 21.) Plaintiff states that the ALJ 17 disregarded these conclusions even though they are in line with Plaintiff’s mental status 18 examinations. (Joint Stip. at 21-22) (citing AR 548-49, 575, 487-88.) In response, Defendant 19 contends that the ALJ assessed a very restricted RFC that “properly translated the functional 20 limitations with record support” and is supported by the record. (Joint Stip. at 26-28.) 21 22 B. Relevant Portions of the Administrative Record 23 24 Plaintiff’s alleged onset date is January 1, 2015. The earliest evidence of mental health 25 treatment in the record is a February 21, 2017 mental status exam performed by the Los 26 Angeles County Department of Mental Health (“DMH”). (AR 548-49.) The DMH 27 practitioner described Plaintiff as having impaired intellectual functioning, memory, and 28 concentration, and “minimum” impairment of judgment and insight. (AR 548-49.) Her affect 1 was sad and worried and her mood was tearful. (AR 548.) Plaintiff reported either having 2 harmed herself or having thoughts of harming herself. (AR 555.) The practitioner set a goal 3 for Plaintiff of cooking a meal for herself at least four times per week. (AR 562.) A 4 subsequent treatment note dated May 9, 2017 stated that Plaintiff experienced nausea and 5 vomiting when she started antidepressants but nevertheless felt “more hopeful” after starting 6 groups and psychotherapy through the DMH. (AR 575.) 7 8 On September 29, 2017, Plaintiff underwent a consultative psychiatric examination with 9 Ernest A. Bagner, III, M.D., a board eligible psychiatrist. (AR 629-633.) Dr. Bagner 10 performed a mental status examination and made the following observations: Plaintiff was 11 tearful and cooperative; her speech was normal but emotional; her mood was depressed and 12 anxious with an appropriate affect; Plaintiff could recall 3 out of 3 objects immediately and 2 13 out of 3 objects in 5 minutes; and, inter alia, Plaintiff could perform serial threes but not serial 14 sevens. (AR 631.) Dr. Bagner diagnosed Plaintiff with major depressive disorder and alcohol 15 dependence in full remission. (AR 632.) He assessed a GAF score of 65,4 indicating mild 16 symptoms and/or mild difficulties in functioning. (AR 632.) He opined that Plaintiff’s ability 17 to interact appropriately with the public, co-workers, and supervisors was moderately limited 18 and that Plaintiff’s ability to comply with job rules, respond to changes in a routine work 19 setting, and ability to respond to work pressure in a usual work setting was mildly limited. 20 (AR 632.) 21 22 On November 16, 2017, two months after Dr. Bagner’s examination, Plaintiff underwent 23 a consultative psychological evaluation with licensed clinical psychologist, Danita Stewart. 24 (AR 635-641.) It is Stewart’s opinion that is now at issue. In the mental status examination, 25 4 A GAF score of 61-70 indicates “some mild symptoms (e.g., depressed mood and mild insomnia) or some 26 difficulty in social, occupational, or school functioning . . . but generally functioning pretty well.” See DIAGNOSTIC AND 27 STATISTICAL MANUAL OF MENTAL DISORDERS (“DSM-IV”) 34 (revised 4th ed. 2000). The Commissioner has stated that the GAF scale “does not have a direct correlation to the severity requirements in [the] mental disorders listings,” 65 Fed. 28 Reg. 50764, 50764-65 (Aug. 21, 2000), and the fifth edition of the DSM “dropped” the GAF scale. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 16 (5th ed. 2012). 1 Stewart reported that Plaintiff was pleasant and cooperative but appeared mildly depressed 2 and was tearful at points. (AR 638.) Stewart reported that Plaintiff’s memory was moderately 3 diminished for immediate, intermediate, and remote recall. (AR 639.) Plaintiff’s attention 4 and concentration span were also mildly diminished. (AR 639.) Plaintiff’s fund of knowledge 5 was low to low average. (AR 639.) Plaintiff’s insight and judgment were appropriate. (AR 6 639.) Stewart diagnosed Plaintiff with the following: major depressive disorder, recurrent, 7 severe; generalized anxiety disorder; and alcohol use disorder, in early remission. (AR 640.) 8 She opined that Plaintiff would be able to understand, remember, and carry out short, 9 simplistic instructions without difficulty and make simplistic work-related decisions without 10 special supervision. (AR 640.) She opined that Plaintiff would be able to interact 11 appropriately with supervisors, coworkers, and peers, maintain attendance, and complete an 12 8-hour workday in a regular workplace setting. (AR 640.) However, she also opined that 13 Plaintiff “has a marked inability to deal with the usual stressors of competitive workplace 14 setting, given her chronic and severe depression, as well as her anxiety and issues with memory 15 and focus. [Plaintiff] would likely manifest repeated episodes of emotional deterioration 16 affecting her functioning in difficult situations and when adjusting to change in a workplace 17 setting.” (AR 640.) 18 19 On December 13, 2017, one month after Stewart’s examination, Paul Klein, Psy.D., the 20 state agency reviewing psychologist, opined that Plaintiff had no significant limitations in her 21 ability to understand, remember, and carry out very short and simple instructions, maintain 22 attention and concentration, perform activities within a schedule, maintain regular attendance, 23 sustain an ordinary routine without special supervision, make simple work-related decisions, 24 complete a normal workday and workweek, and perform at a consistent pace. (AR 83-84.) 25 He opined that Plaintiff was moderately limited, however, in her ability to work with or in 26 proximity to others without being distracted by them, interact appropriately with the general 27 public, accept instructions and respond appropriate to criticism from supervisors, and get along 28 1 with coworkers or peers. (AR 83-84.) He added that Plaintiff “adapts to normal work-related 2 change in most work-like settings.” (AR 84.) 3 4 On November 17, 2018, one year after Plaintiff’s examination by Stewart, Plaintiff 5 underwent a second consultative psychological evaluation—this time with Cyrus Riahi, Ed.S, 6 Ph.D., a clinical psychologist. (AR 727-32.) Plaintiff told Riahi that she was seeing a 7 psychiatrist and taking Trintellix, an antidepressant. (AR 728.) Riahi conducted a mental 8 status examination and observed that Plaintiff’s affect was euthymic but Plaintiff described 9 her mood as, “I wish I was never born.” (AR 729.) Plaintiff’s immediate memory, 10 concentration, attention, and judgment were fair. (AR 729.) On the Wechsler Adult 11 Intelligence Scale (WAIS-IV), Riahi observed that Plaintiff had difficulty with processing 12 speed, which negatively impacted her overall score and resulted in scores in the upper end of 13 the borderline to low average range of intellectual functioning. (AR 730.) On the Beck 14 Depression Inventory, Plaintiff fell in the severe range of depression. (AR 731.) Riahi 15 diagnosed Plaintiff with depressive disorder associated with medical condition and, like Dr. 16 Bagner, assessed a GAF score of 65, indicating mild symptoms and/or mild difficulties in 17 functioning. (AR 732.) Riahi opined that Plaintiff was able to understand, remember, and 18 carry out simple and repetitive instructions, relate with others, and accept supervision. (AR 19 732.) He further opined that Plaintiff’s pace was “slightly slow and she could have moderate 20 problems with pace in fast-paced type of positions.” (AR 732.) 21 22 Finally, on May 9, 2019, reviewing psychiatrist P. Walls, M.D., completed a second 23 residual functional capacity assessment on behalf of the agency. (AR 920.) He opined that 24 Plaintiff was moderately limited in her ability to maintain attention and concentration for 25 extended periods, complete a normal work-day and workweek without interruptions from 26 psychologically based symptoms, perform at a consistent pace, interact appropriately with the 27 general public, accept instructions and respond appropriately to criticism from supervisors, 28 get along with coworkers or peers, and respond appropriately to changes in the work setting. 1 (AR 920-21.) Dr. Walls opined that, in all other areas, Plaintiff had no significant limitation. 2 (Id.) He ultimately concluded that Plaintiff could perform the following: “understand 3 instructions”; “maintain CPP to complete simple repetitive 1-2 step tasks;” “tolerate limited 4 contact with public and coworkers”; and “adapt to changes in simple routines.” (AR 922.) 5 6 C. ALJ’s Decision 7 8 The ALJ found that Plaintiff had the following severe mental impairments: major 9 depressive disorder; generalized anxiety disorder; post-traumatic stress disorder; and 10 borderline to low average intellectual functioning. (AR 20.) The ALJ concluded that Plaintiff 11 was moderately limited in the following areas: understanding, remembering, or applying 12 information (AR 22); interacting with others (AR 22); concentration, persistence, and pace 13 (AR 23); and adapting or managing herself (AR 23). He stated that he accommodated each of 14 these limitations by restricting Plaintiff to understanding, remembering, and carrying out 15 simple job instructions, occasional interaction with coworkers and supervisors, no direct 16 interaction with the general public, non-complex routine tasks in a work environment free of 17 fast-paced production requirements, and only occasional changes to the work setting. (AR 22- 18 23.) Accordingly, the ALJ ultimately concluded that Plaintiff’s mental RFC was the 19 following: “can understand, remember, and carry out simple job instructions; can maintain 20 attention and concentration to perform non-complex routine tasks in a work environment free 21 of fast-paced production requirements; can have occasional interaction with coworkers and 22 supervisors, and no direct interaction with the general public; and can work in an environment 23 with occasional changes to the work setting.” (AR 24.) 24 25 In support of his assessment, the ALJ summarized the mental status examinations of the 26 consultative examiners, but he did not mention Stewart’s opinion that Plaintiff “has a marked 27 inability to deal with the usual stressors of competitive workplace setting” and “would likely 28 manifest repeated episodes of emotional deterioration affecting her functioning in difficult 1 situations and when adjusting to change in a workplace setting.” (See generally AR 29; see 2 also AR 640.) The ALJ stated that he relied heavily upon the consultative examiners and State 3 agency’s functional assessments in formulating the RFC and, when there were discrepancies 4 between the opinions, he generally resolved the inconsistencies in favor of the most recent 5 State agency assessment—Dr. Walls’ May 2019 mental RFC assessment—because it was the 6 most up-to-date analysis of Plaintiff’s mental functioning and considered evidence that was 7 not available to the consultative examiners and prior State agency consultant. (AR 30.) 8 9 D. Applicable Law 10 11 In determining a claimant’s RFC, an ALJ is not required to recite verbatim the opinion 12 of a credited medical source. Jones v. Astrue, No. 08-08562-MLG, 2009 WL 4110111, at *2 13 (C.D. Cal. Nov. 24, 2009); see also Phillips v. Colvin, 61 F. Supp.3d 925, 939-40 (N.D. Cal. 14 2014) (an assessment of moderate limitations does not have to be exactly mirrored in the RFC 15 determination); Little v. Comm’r of Social Sec., 780 F. Supp.2d 1143, 1152-54 (D. Or. 2011) 16 (agreeing with the Commissioner that an ALJ does not necessarily reject a medical opinion 17 simply because he does not adopt the opinion’s findings verbatim). Instead, the RFC 18 assessment is the ALJ’s translation of the medical evidence, including the medical opinions 19 provided by the treating, examining, and reviewing physicians included in the record. 20 21 The Commissioner revised the rules for disability applications filed on or after March 22 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg 23 5844-01 (Jan. 18, 2017). The new regulations provide that the Commissioner “will not defer 24 or give any specific evidentiary weight . . . to any medical opinion(s) . . . including those from 25 [the claimant’s] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, medical 26 opinions now are evaluated according to the following factors: supportability; consistency; 27 relationship with the claimant; specialization; and other factors such as the medical source’s 28 familiarity with other evidence in the record or with disability program requirements. 20 1 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The most important of these factors are 2 supportability5 and consistency,6 and the ALJ need only address the remaining factors when 3 deciding among differing yet equally persuasive opinions or findings on the same issue. 20 4 C.F.R. §§ 404.1520c(b), 416.920c(b). 5 6 Because Plaintiff filed her applications in May 2017, her applications are subject to the 7 revised rules, and the Court defers to the new regulations. See Nat’l Cable & Telecomms. 8 Ass’n v. Brand X Internet Services, 545 U.S. 967, 981-82 (2005); see, e.g., Schisler v. Sullivan, 9 3 F.3d 563, 567-58 (2d Cir. 1993) (“New regulations at variance with prior judicial precedents 10 are upheld unless ‘they exceeded the Secretary’s authority [or] are arbitrary and 11 capricious.’”).7 However, ALJs are still required to “articulate . . . how persuasive [they] find 12 all of the medical opinions” and “explain how [they] considered the supportability and 13 consistency factors.” 20 C.F.R. §§ 404.1520c(b), 416.920c(b). “The ‘more relevant the 14 objective medical evidence and supporting explanations presented’ and the ‘more consistent’ 15 with evidence from other sources, the more persuasive a medical opinion or prior finding.” 16 Robert S. v. Saul, No. 3:19-CV-01773-SB, 2021 WL 1214518, at *3 (D. Or. Mar. 3, 2021), 17 report and recommendation adopted, No. 3:19-CV-01773-SB, 2021 WL 1206576 (D. Or. Mar. 18 29, 2021). In sum, the Commissioner must explain his reasoning and specifically address how 19 he considered the supportability and consistency of the opinion, and his reasoning must be 20 free from legal error and supported by substantial evidence. Titus L. S. v. Saul, No. 2:20-CV- 21 04825-AFM, 2021 WL 275927, at *7 (C.D. Cal. Jan. 26, 2021); see also Robert S. v. Saul, 22 No. 3:19-CV-01773-SB, 2021 WL 1214518, at *3 (D. Or. Mar. 3, 2021) (citing Linda F. v. 23 24

25 5 Supportability is the extent to which an opinion or finding is supported by relevant objective medical evidence and the medical source’s supporting explanations. 20 C.F.R. § 416.920c(c)(1). 26 6 Consistency is the extent to which an opinion or finding is consistent with evidence from other medical sources and non-medical sources, including the claimants themselves. 20 C.F.R. § 416.920c(c)(2), 416.902(j)(1). 27 7 To date, the Ninth Circuit has not yet addressed whether or how the new regulations alter analysis of the adequacy of an ALJ’s reasoning. See Titus L. S. v. Saul, No. 2:20-CV-04825-AFM, 2021 WL 275927, at *6 (C.D. Cal. Jan. 26, 2021) 28 (citations omitted). 1 Saul, No. C20-5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020)), report and 2 recommendation adopted, No. 3:19-CV-01773-SB, 2021 WL 1206576 (D. Or. Mar. 29, 2021). 3 4 E. Analysis 5 6 The ALJ committed no error with respect to Stewart’s opinion because, rather than 7 discounting Stewart’s opinion without explanation, he incorporated her assessed restrictions 8 into the RFC. Specifically, in limiting Plaintiff to jobs (1) entailing only “simple” instructions 9 and “non-complex routine tasks” (2) performed in work environments “free of fast-paced 10 production requirements” and (3) involving only “occasional interaction with coworkers and 11 supervisors,” no direct interaction with the general public, and only “occasional changes to 12 the work setting,” the ALJ limited Plaintiff to work environments in which she was unlikely 13 to face the “usual stressors” of competitive employment, “difficult situations,” or “changes in 14 a workplace.” Accordingly, although the ALJ would have erred if he had discounted Stewart’s 15 opinion without explanation, he, in fact, credited the relevant portions of Stewart’s opinion 16 and translated them into functional limitations in his RFC assessment. Therefore, with regards 17 to the ALJ’s consideration of Stewart’s opinion, the agency’s decision is AFFIRMED. 18 However, this conclusion does not alter the Court’s earlier determination that reversal and 19 remand is warranted on the basis of the ALJ’s failure to obtain and consider a legible copy, or 20 translation, of Dr. Ayoub’s notes about Plaintiff’s need for a walker. 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 1 CONCLUSION 2 3 For the reasons stated above, IT IS ORDERED that the decision of the Commissioner 4 || is REVERSED, and this case is REMANDED for further proceedings consistent with this 5 || Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this 8 || Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 || DATE: July 9, 2021

14 KAREN L. STEVENSON 15 UNITED STATES MAGISTRATE JUDGE

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