Chan v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: April 18, 2022
• Docket: 2:21-cv-00521
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8

9 SOPHAL C., Plaintiff, CASE NO. C21-0521-MAT 10 v. 11 ORDER RE: SOCIAL SECURITY COMMISSIONER OF SOCIAL SECURITY, DISABILITY APPEAL 12 Defendant. 13

14 Plaintiff appeals a final decision of the Commissioner of the Social Security Administration 15 (Commissioner) denying Plaintiff’s application for disability benefits after a hearing before an 16 administrative law judge (ALJ). Having considered the ALJ’s decision, the administrative record 17 (AR), and all memoranda of record, this matter is REVERSED and REMANDED for further 18 administrative proceedings. 19 FACTS AND PROCEDURAL HISTORY 20 Plaintiff was born on XXXX, 1972.1 Plaintiff has limited education and previously worked 21 in the composite job of hand painter and spray painter. AR 31. Plaintiff filed an application for 22 Supplemental Security Income (SSI) on June 13, 2018, alleging disability beginning December 1, 23

1 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1). 1 2009. AR 18. The application was denied at the initial level and on reconsideration. On July 29, 2 2020, the ALJ held a hearing and took testimony from Plaintiff and a vocational expert (VE).2 3 AR 39–72. At the hearing, Plaintiff amended the alleged onset date to June 13, 2018, the date of

4 Plaintiff’s application. AR 18, 43. On August 28, 2020, the ALJ issued a decision finding Plaintiff 5 not disabled.3 AR 18–33. Plaintiff timely appealed. The Appeals Council denied Plaintiff’s request 6 for review on February 11, 2021 (AR 1–6), making the ALJ’s decision the final decision of the 7 Commissioner. Plaintiff appeals this final decision of the Commissioner to this Court. 8 JURISDICTION 9 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 10 STANDARD OF REVIEW 11 This Court’s review of the ALJ’s decision is limited to whether the decision is in 12 accordance with the law and the findings are supported by substantial evidence in the record as a 13 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). “Substantial evidence” means more

14 than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable 15 mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 16 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s 17 decision, the Court must uphold the ALJ’s decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th 18 Cir. 2002). 19 DISCUSSION 20 The Commissioner follows a five-step sequential evaluation process for determining 21

2 The ALJ previously held a hearing in this matter on February 4, 2015. AR 73–105. 22 3 The ALJ previously issued a decision finding Plaintiff not disabled on February 17, 2015. AR 106–16. Although the prior decision creates a presumption of continuing non-disability under Chavez v. Bowen, 844 23 F.2d 691 (9th Cir. 1988), the ALJ found that “the presumption was rebutted because the mental regulations have changed.” AR 19. 1 whether a claimant is disabled. See 20 C.F.R. § 416.920 (2000). 2 At step one, the ALJ must determine whether the claimant is gainfully employed. The ALJ 3 found Plaintiff had not engaged in substantial gainful activity since the alleged onset date. AR 21.

4 At step two, the ALJ must determine whether a claimant suffers from a severe impairment. 5 The ALJ found Plaintiff has the following severe impairments: degenerative joint disease, bilateral 6 ankles; degenerative disc disease, spine; tendonitis, left ankle; ischemic heart disease; chronic liver 7 disease; thyroid disorder; gastrointestinal reflux disorder; and depressive disorder. AR 21. 8 At step three, the ALJ must determine whether a claimant’s impairments meet or equal a 9 listed impairment. The ALJ found that Plaintiff’s impairments did not meet or equal the criteria of 10 a listed impairment. AR 21–23. 11 If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess 12 residual functional capacity (RFC) and determine at step four whether the claimant has 13 demonstrated an inability to perform past relevant work. The ALJ found that Plaintiff was able to

14 occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 pounds; he can stand and/or walk with normal breaks for a 15 total of about six hours in an 8-hour workday; he can sit with normal breaks for a total of more than six hours on a sustained basis in an 16 8-hour workday; pushing and/or pulling, including operation of hand and foot controls, is unlimited other than as indicated for lifting 17 and/or carrying; he can occasionally climb ramps, stairs, ladders, ropes, and scaffolds; he can frequently balance, stoop, kneel, crouch, 18 and crawl; and he must avoid concentrated exposure to vibration and hazards. He can understand, remember, and carry out simple 19 instructions and exercise simple workplace judgment; he can perform work that is learned on the job in less than 30 days by short 20 demonstration and practice or repetition; he can respond appropriately to workplace supervision; he can have occasional 21 superficial interaction with coworkers; he can deal with occasional changes in the work environment; and he can do work that requires 22 no interaction with the general public to perform the work tasks, but this does not preclude work environments where the public is 23 present. 1 AR 23. The ALJ’s RFC is consistent with the ability to perform light work, as defined in 20 C.F.R. 2 § 404.1567(b), with the limitations identified above. With that assessment, the ALJ found Plaintiff 3 unable to perform any past relevant work. AR 31.

4 If a claimant demonstrates an inability to perform past relevant work, or has no past 5 relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant 6 retains the capacity to make an adjustment to work that exists in significant levels in the national 7 economy. With the assistance of a VE, the ALJ found Plaintiff capable of performing other jobs, 8 such as work as a laundry sorter, hand packager, and garment sorter. AR 31–32. 9 Plaintiff raises the following issue on appeal: Whether the ALJ erred in failing to properly 10 consider and provide adequate explanation for the preference assigned to the opinions of the 11 agency’s consultative examiner, Plaintiff’s treating physician, and the agency’s medical 12 consultants. Plaintiff requests remand for further administrative proceedings. The Commissioner 13 argues the ALJ’s decision has the support of substantial evidence and should be affirmed.

14 1. Medical Opinions 15 The regulations effective March 27, 2017, require the ALJ to articulate how persuasive the 16 ALJ finds medical opinions and to explain how the ALJ considered the supportability and 17 consistency factors.4 20 C.F.R. § 416.920c(a)–(b). The regulations require an ALJ to specifically 18 account for the legitimate factors of supportability and consistency in addressing the 19 persuasiveness of a medical opinion. The “more relevant the objective medical evidence and 20 supporting explanations presented” and the “more consistent” with evidence from other sources, 21 the more persuasive a medical opinion or prior finding. Id. at § 416.920c(c)(1)–(2). 22

23 4 The Ninth Circuit has not yet addressed the 2017 regulations in relation to its standard for the review of medical opinions. 1 Further, the Court must continue to consider whether the ALJ’s analysis is supported by 2 substantial evidence. See 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social 3 Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”); see also

4 Webster v. Kijakazi, 19 F.4th 715, 718–19 (5th Cir. 2021) (applying the substantial evidence 5 standard under the 2017 regulations); Matos v. Comm’r of Soc. Sec. Admin., No. 21-11764, 2022 6 WL 97144, at *4 (11th Cir. January 10, 2022) (same); Zhu v. Comm’r of Soc. Sec. Admin., No. 20- 7 3180, 2021 WL 2794533, at *6 (10th Cir. July 6, 2021) (same). With these regulations and 8 considerations in mind, the Court proceeds to its analysis of the medical evidence in this case. 9 A. Dr. Kenneth Hapke, J.D., Ph.D. 10 Dr. Hapke evaluated Plaintiff on August 9, 2019, and opined that “numerous psychosocial 11 factors limit [Plaintiff’s] employability, including: limited fluency in English, homelessness, 12 poverty, etc.,” that Plaintiff’s “ability to sustain concentration is limited,” that Plaintiff’s memory 13 is impaired, and that Plaintiff “is suspicious of other people and he prefers to be isolated and apart

14 from others.” AR 687. Dr. Hapke opined that Plaintiff “would have difficulty performing tasks 15 normally required in work situations, including: following a regular schedule, managing routine 16 changes, complying with instructions, working independently, and collaborating with colleagues, 17 supervisors, and members of the public.” AR 687. The doctor diagnosed Plaintiff with PTSD, 18 unspecified neurocognitive disorder, and major depressive disorder with anxious distress. AR 687. 19 The regulations require the ALJ to articulate the persuasiveness of each medical opinion 20 and explain how the ALJ considered the supportability and consistency factors for that opinion. 21 20 C.F.R. § 416.920c(a)–(b). The ALJ did not find Dr. Hapke’s opinion persuasive. AR 30. The 22 ALJ found that the doctor did not have an opportunity to review the updated medical record and 23 that his opinion is “generally inconsistent with the longitudinal record such as, for example, 1 examination findings that the claimant retained grossly normal neurologic findings to include an 2 intact memory; his often normal mood and affect; his often benign presentation to include full 3 orientation and no acute distress; treatment notes indicating that he is able to maintain relationships

4 with friends and family; treatment notes indicating appropriate grooming and hygiene; and his 5 declination of psychiatric medication.” AR 30. The ALJ further found that the doctor’s opinion 6 “as to the severity of claimant’s limitations is not entirely consistent with his own examination 7 notes.” AR 30. 8 Plaintiff argues that the ALJ erred by rejecting Dr. Hapke’s opinion based on the doctor’s 9 lack of opportunity to review the updated medical record. Dkt. 16, at 6. Plaintiff argues that “[t]here 10 is no requirement that an examiner review records in order to produce a probative opinion.” Id. 11 Social Security regulations do not require an examining physician to review all of a claimant’s 12 medical records—indeed, even a consulting physician is not required to review all of a claimant’s 13 background records when assessing a claimant’s limitations. See Walshe v. Barnhart, 70 Fed.

14 Appx. 929, at *1 (9th Cir. July 16, 2003). Rather, the regulations provide that “[a] medical source 15 may have a better understanding of [a claimant’s] impairment(s) if he or she examines [the 16 claimant] than if the medical source only reviews evidence in [the claimant’s] folder.” 20 C.F.R. 17 § 416.920c(3)(v). Here, Dr. Hapke examined Plaintiff and provided clinical findings based on that 18 assessment. Because Dr. Hapke’s understanding of Plaintiff’s impairments is sufficiently 19 supported by the doctor’s examination of Plaintiff and is not clearly undermined by the doctor’s 20 lack of opportunity to review the updated record, the ALJ’s rejection of Dr. Hapke’s opinion based 21 on the doctor’s lack of opportunity to review the updated record is not supported by substantial 22 evidence. 23 Plaintiff argues that the ALJ erred by finding Dr. Hapke’s opinion generally inconsistent 1 with the longitudinal record and that the ALJ failed to clearly address the doctor’s limitations 2 regarding Plaintiff’s memory and concentration. Dkt. 16, at 6–7. Under the consistency factor, 3 “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources

4 and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . .will be.” 20 5 C.F.R. § 416.920c(c)(2). In the decision, the ALJ cites to medical records showing Plaintiff in no 6 acute distress and exhibiting normal mood and affect with normal neurological findings, including 7 full orientation and normal memory. AR 27 (citing AR 626, 665, 670, 676, 682); see Magallanes, 8 881 F.2d at 755 (the Court may draw inferences from the ALJ’s decision relevant to the ALJ’s 9 evaluation of medical opinion evidence). The records cited by the ALJ, however, pertain to 10 Plaintiff’s treatment of his physical ailments, including ankle arthritis, hypothyroidism, liver 11 problems, and diarrhea, and there is no indication that a detailed neurological exam was performed 12 during these treatments. See AR 626, 665, 670, 676, 682. Yet, when reviewing Plaintiff’s mental, 13 psychological, and behavioral treatment records, the ALJ found that Plaintiff has symptoms from

14 his depressive disorder that “include poor sleep and nightmares; anxiety and depression; aural 15 hallucinations; poor appetite, poor energy and fatigue; and cognitive dysfunction to include poor 16 memory and concentration” and that “[t]reatment notes sometimes indicate that the claimant has a 17 depressed mood and affect.” AR 26 (citing AR 477, 633, 636, 641, 685, 689, 697, 707, 710); see 18 also 20 C.F.R. § 416.920c(c)(3)(iii) (“The purpose for treatment you received from the medical 19 source may help demonstrate the level of knowledge the medical source has of your 20 impairment(s).”). The records from Plaintiff’s mental health treatment are consistent with 21 Dr. Hapke’s opinion, yet the ALJ failed to discuss this corroborating evidence when evaluating 22 the persuasiveness of Dr. Hapke’s opinion. See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 23 1984) (the ALJ “cannot reach a conclusion first, and then attempt to justify it by ignoring 1 competent evidence in the record that suggests an opposite result”). Therefore, the ALJ’s rejection 2 of Dr. Hapke’s opinion based on inconsistency with the longitudinal record is not supported by 3 substantial evidence.

4 Plaintiff further argues that the ALJ failed to explain how observations in the record 5 regarding Plaintiff’s normal mood and affect, full orientation, no acute distress, and grooming and 6 hygiene were inconsistent with Dr. Hapke’s findings. Dkt. 16, at 7. During his evaluation, 7 Dr. Hapke similarly observed that Plaintiff appeared appropriately dressed, had adequate 8 grooming and hygiene, had normal speech and eye contact, was pleasant and cooperative, was 9 oriented, and had appropriate affect. AR 686. Nevertheless, Dr. Hapke assessed Plaintiff’s 10 limitations based on Plaintiff’s performance on clinical tests, including serial sevens and memory 11 recall. AR 687. Dr. Hapke’s observations regarding Plaintiff’s appearance, mood, and affect were 12 not clearly inconsistent with observations by other providers in the record. Further, the ALJ failed 13 to show how and why these observations were inconsistent with Dr. Hapke’s opinion, including

14 the doctor’s assessment of limitations relating to Plaintiff’s memory and concentration. An ALJ 15 “must do more than offer his conclusions” and “must set forth his own interpretations and explain 16 why they, rather than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 17 1988)). Therefore, the ALJ’s rejection of Dr. Hapke’s opinion based on inconsistency with 18 evidence of Plaintiff’s appearance and presentation is not supported by substantial evidence. 19 Plaintiff next argues that the ALJ erred by finding Dr. Hapke’s opinion inconsistent with 20 treatment notes indicating that Plaintiff is able to maintain relationships with friends and family. 21 Dkt. 16, at 8. An ALJ may consider inconsistency with the record in rejecting a physician’s 22 opinion. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Dr. Hapke diagnosed Plaintiff 23 with several psychosocial issues, including homelessness, unemployment, poverty, inadequate 1 finances, unstable housing, inadequate behavioral health support, social isolation, and lack of 2 family support. AR 687. Dr. Hapke opined that Plaintiff “is suspicious of other people and he 3 prefers to be apart from others” and that Plaintiff would have difficulty “collaborating with

4 colleagues, supervisors, and members of the public.” AR 687. The ALJ cited to treatment records 5 noting that Plaintiff had some friend and family support (AR 27 (citing AR 636, 640, 700, 705, 6 707)); however, the ALJ did not address the other psychosocial issues that Dr. Hapke diagnosed 7 and that supported the doctor’s opinion that Plaintiff would have difficulty collaborating with 8 colleagues, supervisors, and members of the public. See 20 C.F.R. § 416.920c(c)(1) (the ALJ must 9 discuss the supportability factor when evaluating the persuasiveness of a medical opinion). 10 Further, Dr. Hapke assessed limitations specifically regarding Plaintiff’s ability to perform tasks 11 in work situations (AR 687) and evidence of Plaintiff’s ability to interact with friends and family 12 outside of work situations does not clearly undermine Dr. Hapke’s opinion. See Fair v. Bowen, 13 885 F.3d 597, 603 (9th Cir. 1989) (“The Social Security Act does not require that claimants be

14 utterly incapacitated to be eligible for benefits . . . .”). Therefore, the ALJ’s rejection of Dr. Hapke’s 15 assessment of Plaintiff’s social limitations based on inconsistency with Plaintiff’s relationships 16 with friends and family is not supported by substantial evidence. 17 Plaintiff argues that the ALJ erred by rejecting Dr. Hapke’s opinion based on Plaintiff’s 18 “‘declination of psychiatric medication.’” Dkt. 16, at 9 (citing AR 30). The ALJ found that “[i]f 19 [Plaintiff’s] symptoms were as severe as alleged, one would expect him to pursue all available 20 treatment” and that Plaintiff’s “failure to do so suggest[s] that he may retain greater functioning 21 than alleged.” AR 27. An ALJ may consider improvement with treatment in discounting 22 physician’s opinion. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Here, the ALJ did 23 not find that Plaintiff’s mental impairments improved with treatment. Further, the ALJ failed to 1 explain how and why Plaintiff’s declination of psychiatric medication undermined any of 2 Dr. Hapke’s assessed limitations. Indeed, Dr. Hapke based his opinions on clinical findings and 3 did not base his opinions on Plaintiff’s declination of psychiatric medication. See AR 687.

4 Therefore, the ALJ’s rejection of Dr. Hapke’s opinion based on evidence that Plaintiff declined 5 psychiatric medication is not supported by substantial evidence. 6 Finally, Plaintiff argues that the ALJ erred by finding Dr. Hapke’s opinion inconsistent 7 with the doctor’s own examination notes. Dkt. 16, at 9. In evaluating the supportability of a medical 8 opinion, “[t]he more relevant the objective medical evidence and supporting explanations 9 presented by a medical source are to support his or her medical opinion(s) . . . , the more persuasive 10 the medical opinions . . . will be.” 20 C.F.R. § 416.920c(c)(1). The ALJ found that, “while 11 Dr. Hapke’s medical source statement indicates that the claimant is suspicious of others and prefers 12 to be isolated, he also observed that the claimant was pleasant and cooperative with normal eye 13 contact throughout the interview.” AR 30. Dr. Hapke’s opinion assessed Plaintiff’s limitations

14 based on his ability to perform tasks normally required in work situations. AR 687. Accordingly, 15 Plaintiff’s ability to be pleasant and cooperative during a psychological examination does not 16 clearly undermined Dr. Hapke’s assessment regarding Plaintiff’s ability to perform work tasks. 17 Further, Dr. Hapke based his opinion on Plaintiff’s performance on clinical tests, which findings 18 the ALJ failed to address under the supportability factor. See 20 C.F.R. § 416.920c(c)(1) (the ALJ 19 must discuss the supportability factor when evaluating the persuasiveness of a medical opinion). 20 Therefore, the ALJ’s rejection of Dr. Hapke’s opinion based on lack of support in the doctor’s own 21 findings is not supported by substantial evidence. 22 B. Dr. Jessica Guh, M.D. 23 Dr. Guh examined Plaintiff on March 2, 2018, and diagnosed Plaintiff with syncope and 1 right ankle pain. 5 AR 471. Regarding Plaintiff’s right ankle condition, Dr. Guh assessed Plaintiff 2 with severe limitations regarding Plaintiff’s ability to perform basic work activities, including 3 sitting, standing, walking, lifting, carrying, handling, pushing, pulling, reaching, stooping, and

4 crouching. AR 471. The doctor opined that Plaintiff was “[s]everely limited” and “[u]nable to meet 5 the demands of sedentary work.” AR 472. 6 The ALJ did not find Dr. Guh’s opinion persuasive. AR 28. The ALJ found that the doctor’s 7 “opinion as to the severity of the claimant’s limitations is generally out of proportion to the 8 longitudinal record to include, for example, physical examinations evidencing grossly normal 9 neurological functioning, no edema in his lower extremities, and a generally unremarkable 10 musculoskeletal system; treatment notes indicating that the claimant maintained appropriate 11 grooming and hygiene; his generally benign presentation; his often normal mood and affect; and 12 statements indicating that his ankle symptoms improved with treatment.” AR 28. The ALJ further 13 noted that Dr. Guh’s opinion predated the period at issue. AR 28.

14 Plaintiff argues that the ALJ erred by rejecting Dr. Guh’s opinion based on inconsistency 15 with the longitudinal record. Dkt. 16, at 11. Specifically, Plaintiff argues that “[t]he ALJ did not 16 cite to the record or point to specific evidence which was inconsistent with Dr. Guh’s opinion. Id. 17 Although the ALJ did not cite specific evidence in evaluating Dr. Guh’s opinion, the Court may 18 draw inferences from the ALJ’s decision relevant to the ALJ’s evaluation of medical opinion 19 evidence. See Magallanes, 881 F.2d at 755. In the decision, the ALJ cited to examination records 20 from March 2018, July 2018, October 2018, and February 2019 indicating “grossly non-focal 21 neurological findings.” AR 25 (citing AR 577, 665, 676, 682). However, the ALJ failed to explain 22

23 5 Plaintiff identifies the date of Dr. Guh’s examination as February 15, 2018 (Dkt. 16, at 10); however, the Court uses the date of the examination reflected on Dr. Guh’s opinion. See AR 472. 1 how and why neurological findings were inconsistent with Dr. Guh’s assessment of Plaintiff’s 2 physical limitations. Further, although the ALJ cited to medical records from March 2018, July 3 2018, and January 2019 showing no edema in Plaintiff’s lower extremities (AR 25 (citing AR 577,

4 626, 670)), the ALJ also found that medical records showed degenerative conditions in Plaintiff’s 5 spine and bilateral ankles and that “treatment notes indicated that [Plaintiff] sometimes had limited 6 mobility due to ankle pain and swelling.” AR 24 (citing AR 405, 463–64, 576, 591, 689, 692). The 7 ALJ failed to discuss this evidence, which is consistent with Dr. Guh’s assessment of limitations 8 from Plaintiff’s ankle pain. The ALJ “cannot simply pick out a few isolated instances” of medical 9 health that support her conclusion but must consider those instances in the broader context “with 10 an understanding of the patient’s overall well-being and the nature of her symptoms.” Attmore v. 11 Colvin, 827 F.3d 872, 877 (9th Cir. 2016). Finally, the ALJ failed to cite medical records that show 12 Plaintiff’s “generally unremarkable musculoskeletal system.” AR 25, 28. Rather, the medical 13 records cited by the ALJ regarding Plaintiff’s ankle pain also noted that Plaintiff had an antalgic

14 gait, significant arthritis of the right ankle, bilateral arthrosis, inability to lift heavy objects, and 15 limited mobility, which evidence the ALJ did not discuss when evaluating the persuasiveness of 16 Dr. Guh’s opinion. AR 577, 591, 689, 692. Therefore, the ALJ’s rejection of Dr. Guh’s assessed 17 limitation based on inconsistency with the longitudinal record was not supported by substantial 18 evidence. 19 Plaintiff argues that the ALJ improperly rejected Dr. Guh’s opinion based on inconsistency 20 with treatment notes showing Plaintiff had appropriate grooming and hygiene, generally benign 21 presentation, and normal mood and affect. Dkt. 16, at 13. The ALJ failed to explain how and why 22 these findings were inconsistent with Dr. Guh’s assessment limitations regarding Plaintiff’s ankle 23 pain. See Embrey, 849 F.2d at 421 (an ALJ “must do more than offer his conclusions” and “must 1 set forth his own interpretations and explain why they, rather than the doctors’, are correct”). 2 Therefore, the ALJ erred by rejecting Dr. Guh’s assessed limitation by finding them inconsistent 3 with treatment notes describing Plaintiff’s grooming, hygiene, presentation, mood, and affect.

4 Plaintiff argues that the ALJ erred by rejecting Dr. Guh’s opinion by finding that Plaintiff’s 5 ankle condition had improved. Dkt. 16, at 14. An ALJ may consider improvement with treatment 6 in discounting physician’s opinion. Thomas, 278 F.3d at 957. The ALJ cited treatment notes from 7 April 2018, July 2018, October 2018, and July 2019, in which Plaintiff reported experiencing 8 significant improvement in his pain and mobility after receiving an ankle injection and ankle brace. 9 AR 25 (citing AR 604, 626, 673, 689). Plaintiff argues that the evidence is not clear whether 10 Plaintiff’s improvement continued. Dkt. 16, at 14. However, the burden of proof is on the claimant 11 to establish entitlement to disability benefits. Garrison, 759 F.3d at 1011. Because the record 12 shows that Plaintiff’s right ankle pain improved with treatment, the ALJ did not err by rejecting 13 Dr. Guh’s opinion on this basis.

14 Plaintiff next argues that the ALJ failed to provide an adequate basis for discrediting 15 Dr. Guh’s concerns regarding Plaintiff’s syncope condition. Dkt. 16, at 14. Although Dr. Guh 16 diagnosed Plaintiff with syncope (AR 471), Plaintiff does not allege syncope to be a disabling 17 impairment. See, e.g., AR 48–49, 294. Further, the ALJ did not find syncope to be a severe 18 impairment at step two (AR 21), and Plaintiff does not challenge this finding. Because Plaintiff 19 has not alleged disability related to Plaintiff’s syncope condition, the Court can reasonably infer 20 that the ALJ’s evaluation of Dr. Guh’s opinion applied primarily to the doctor’s assessment of 21 limitations related to Plaintiff’s ankle impairment. See Magallanes, 881 F.2d at 755 (“As a 22 reviewing court, we are not deprived of our faculties for drawing specific and legitimate inferences 23 from the ALJ’s opinion.”). Therefore, Plaintiff has not shown that the ALJ erred by failing to 1 provide an adequate basis to reject Dr. Guh’s assessment of limitation relating to Plaintiff’s 2 syncope condition. 3 Finally, Plaintiff argues that the ALJ improperly rejected Dr. Guh’s opinion by finding that

4 the opinion predated the period at issue. Dkt. 16, at 14. Medical opinions that predate the alleged 5 onset of disability are of limited relevance. See Fair v. Bowen, 885 F.2d 597, 600 (9th Cir. 1989). 6 Further, the Ninth Circuit has found that opinions that predate the relevant period are relevant only 7 to meet the claimant’s “burden of proving his condition has worsened.” Id. Here, as discussed 8 above, the evidence shows that Plaintiff’s right ankle pain improved after Plaintiff received an 9 ankle injection and ankle brace in March 2018, after Dr. Guh had provided her opinion. AR 578, 10 604, 626, 673, 689. Therefore, the ALJ did not err by rejecting Dr. Guh’s opinion by finding that 11 it predated the relevant period. 12 As discussed above, the ALJ erred by rejecting Dr. Guh’s opinion by finding it inconsistent 13 with the longitudinal record and treatment notes showing Plaintiff’s adequate grooming and

14 hygiene, benign presentation, and normal mood and affect. However, this error was harmless 15 because the ALJ provided other valid reasons for rejecting Dr. Guh’s assessed limitations, 16 including by finding that Plaintiff’s ankle condition improved with treatment and that Dr. Guh’s 17 opinion predated the relevant period. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 18 (an ALJ’s error may be deemed harmless where it is “‘inconsequential to the ultimate nondisability 19 determination’”) (internal citation omitted)). Nevertheless, because the matter is remanded on 20 other grounds, the ALJ should reconsider Dr. Guh’s assessed limitations as warranted by further 21 consideration of the evidence on remand. 22 C. Dr. Merry Alto, M.D., and Dr. Debra Baylor, M.D. 23 Dr. Alto, an agency medical consultant, opined that Plaintiff had the following exertional 1 limitations: Plaintiff was able to lift and/or carry 20 pounds occasionally and 10 founds frequently, 2 to stand and/or walk for four hours, to sit more than six hours, and was limited in both lower 3 extremities in his ability to push and/or pull with no foot controls. AR 137. Dr. Alto assessed that

4 Plaintiff had the following postural limitations: Plaintiff was able to climb ramps or stairs 5 occasionally, to stoop and crouch frequently, to climb ladders/ropes/scaffolds never, and to 6 balance, kneel, and crawl without limitations. AR 137–38. Regarding environmental limitations, 7 Dr. Alto limited Plaintiff to avoiding concentrated exposure to vibration and hazards. AR 138. 8 Dr. Alto explained that he assessed Plaintiff’s exertional, postural, and environmental limitations 9 based on Plaintiff’s pain, spine and ankle impairments, and lower extremity strength, range of 10 motion, and sensation. AR 137–38. 11 Dr. Baylor assessed limitations substantially similar to Dr. Alto, except that Dr. Baylor 12 opined that Plaintiff was able to stand and/or walk for six hours, to climb ladders/ropes/scaffolds 13 occasionally, and to stoop, kneel, crouch, and crawl frequently. AR 155–56. Dr. Baylor similarly

14 explained that she assessed her limitations based on Plaintiff’s pain, spine and ankle impairments, 15 and lower extremity strength, range of motion, and sensation. AR 156. 16 The ALJ found the opinions of Drs. Alto and Baylor persuasive. AR 27–28. The ALJ found 17 that, although the doctors did not examine Plaintiff, the opinions were “generally consistent with 18 the longitudinal record to include, for example, physical examinations evidencing grossly normal 19 neurological functioning, no edema in his lower extremities, and a generally unremarkable 20 musculoskeletal system; the claimant’s generally benign presentation; and statements indicating 21 that his ankle symptoms improved with treatment.” AR 27–28. The ALJ, however, found that 22 Dr. Alto’s assessment that Plaintiff was limited to standing and/or walking for four hours and both 23 Dr. Alto and Dr. Baylor’s assessment that Plaintiff cannot operate foot controls to be inconsistent 1 with evidence that Plaintiff’s ankle symptoms improved with treatment and testimony that Plaintiff 2 was able to drive. AR 27–28. 3 Plaintiff argues that the ALJ improperly by rejecting Drs. Alto and Baylor’s opinion based

4 on inconsistency with the longitudinal record because the ALJ gave vague references without 5 explanation or citation to the record. Dkt. 16, at 16. Although the ALJ did not cite specific evidence 6 in evaluating the doctors’ opinions, the Court may draw inferences from the ALJ’s decision 7 relevant to the ALJ’s evaluation of medical opinion evidence. See Magallanes, 881 F.2d at 755. 8 In the decision, the ALJ cited to examination records from March 2018, July 2018, October 2018, 9 and February 2019 indicating “grossly non-focal neurological findings.” AR 25 (citing AR 577, 10 665, 676, 682). However, like with the evaluation of Dr. Guh’s opinion, the ALJ failed to explain 11 how and why neurological findings were consistent with Dr. Alto or Dr. Baylor’s assessments of 12 Plaintiff’s physical limitations. Further, both Dr. Alto and Dr. Baylor explained that they based 13 their opinions of Plaintiff’s exertional, postural, and environmental limitations on Plaintiff’s pain,

14 spine and ankle impairments, and lower extremity strength, range of motion, and sensation; yet 15 the ALJ rejected only some of the doctors’ limitations based on evidence pertaining to Plaintiff’s 16 ankle improvement and driving ability while incorporating the doctors’ other limitations into the 17 RFC. AR 27–28. The ALJ failed to adequately explain why some limitations were rejected while 18 other limitations were incorporated into the RFC when all of the doctors’ limitations were 19 supported by the same evidence pertaining to Plaintiff’s ankle and spine. See 20 C.F.R. 20 § 416.920c(a)–(b) (the ALJ must explain how the ALJ considered the supportability and 21 consistency factors for each medical opinion of record). Finally, as discussed above, the ALJ failed 22 to cite medical records that show Plaintiff’s “generally unremarkable musculoskeletal system.” 23 AR 25, 28. Therefore, the ALJ’s acceptance of the majority of Drs. Alto and Baylor’s assessed 1 limitations based on consistency with the longitudinal record and rejection of the doctors’ standing 2 and/or walking and foot control limitations based on inconsistency with the record was not 3 supported by substantial evidence.

4 D. Dr. Renee Eisenhauer, Ph.D. 5 Dr. Eisenhauer, an agency medical consultant, assessed that Plaintiff was moderately 6 limited in several areas of Plaintiff’s understanding and memory, concentration and persistence, 7 social interaction, and adaptation. AR 157–59. In narrative form, Dr. Eisenhauer explained that 8 Plaintiff can understand, remember, and carry out simple and repetitive tasks; retains the ability to 9 maintained sustained concentration and persistence; can manage little to no contact with the 10 general public; can have occasional contact with co-workers but no joint type tasks; can accept 11 supervision; can adapt to routine and low-pressure work settings, travel independently, and 12 recognize and respond to hazards; and would benefit from others input when setting goals and 13 making plans. AR 157–59.

14 The ALJ found Dr. Eisenhauer’s opinion persuasive. AR 29. The ALJ found that, although 15 the doctor did not examine Plaintiff, Dr. Eisenhauer’s opinion “is generally consistent with the 16 longitudinal record such as, for example, examination findings that [Plaintiff] retained grossly 17 normal neurologic findings to include an intact memory; his often normal mood and affect; his 18 often benign presentation to include full orientation and no acute distress; treatment notes 19 indicating that he is able to maintain relationships with friends and family; treatment notes 20 indicating appropriate grooming and hygiene; and his declination of psychiatric medication.” 21 AR 29. 22 Plaintiff argues that the ALJ improperly accepted Dr. Eisenhauer’s opinion by relying on 23 the “exact same vague language he used to dismiss Dr. Hapke’s opinion.” Dkt. 16, at 16. The ALJ 1 cites to medical records showing Plaintiff in no acute distress and exhibiting normal mood and 2 affect with normal neurological findings, including full orientation and normal memory. AR 27 3 (citing AR 626, 665, 670, 676, 682). However, as discussed above regarding Dr. Hapke’s opinion,

4 the records cited by the ALJ pertain to Plaintiff’s treatment of his physical ailments, including 5 ankle arthritis, hypothyroidism, liver problems, and diarrhea, and there is no indication that a 6 detailed neurological exam was performed during these treatments. See AR 626, 665, 670, 676, 7 682; see also 20 C.F.R. § 416.920c(c)(3)(iii) (“The purpose for treatment you received from the 8 medical source may help demonstrate the level of knowledge the medical source has of your 9 impairment(s).”). Indeed, when reviewing Plaintiff’s mental, psychological, and behavioral 10 treatment records, the ALJ found that Plaintiff’s depressive disorder displayed symptoms of, 11 among other things, “cognitive dysfunction to include poor memory and concentration” and that 12 “[t]reatment notes sometimes indicate that the claimant has a depressed mood and affect.” AR 26 13 (citing AR 477, 633, 636, 641, 685, 689, 697, 707, 710). These records are inconsistent with

14 Dr. Eisenhauer’s opinion that Plaintiff “retains the ability to maintain sustained concentration and 15 persistence . . . on a regular and continuing basis” (AR 158), yet the ALJ failed to discuss this 16 contrary evidence when evaluating the persuasiveness of Dr. Eisenhauer’s opinion. See Gallant, 17 753 F.2d at 1456 (the ALJ “cannot reach a conclusion first, and then attempt to justify it by 18 ignoring competent evidence in the record that suggests an opposite result”). Further, the ALJ 19 failed to discuss the inconsistencies within Dr. Eisenhauer’s own opinion, including that the doctor 20 assessed Plaintiff with moderate limitations in his ability to maintain attention and concentration 21 for extended periods, to complete and normal workday and workweek without interruptions from 22 psychologically based symptoms, and to perform at a consistent pace without unreasonable 23 number and length of rest periods, yet the doctor also opined that Plaintiff retains the ability to 1 maintain sustained concentration and persistence during a normal 8-hour work day in a 40-hour 2 workweek on a regular and continuing basis. AR 157–58. See 20 C.F.R. § 416.920c(a)–(b) (the 3 ALJ must explain how the ALJ considered the supportability and consistency factors for each

4 medical opinion of record). 5 The ALJ further failed to explain how and why observations in the record regarding 6 Plaintiff’s normal mood and affect, full orientation, no acute distress, and grooming and hygiene 7 were consistent with Dr. Eisenhauer’s findings. Indeed, Dr. Eisenhauer opined that Plaintiff was 8 moderately limited is his ability to maintain socially appropriate behavior and to adhere to basic 9 standards of neatness and cleanliness, which assessment is inconsistent with the ALJ’s finding. 10 AR 29, 158. Similarly, the ALJ failed to explain how and why Plaintiff’s ability to maintain 11 relationships with friends and family was consistent with Dr. Eisenhauer’s opinion wherein the 12 doctor assessed limitations concerning Plaintiff’s ability to perform work-related activities and 13 interact with coworkers, supervisors, and the general public. AR 158. Finally, the ALJ failed to

14 explain how and why Plaintiff’s declination of psychiatric medication was consistent with 15 Dr. Eisenhauer’s opinion, particularly when Dr. Eisenhauer did not address medication and the 16 ALJ did not find that Plaintiff’s mental impairments improved with treatment. Because the 17 regulations require the ALJ to explain how the ALJ considered the supportability and consistency 18 factors for each medical opinion of record, 20 C.F.R. § 416.920c(a)–(b), the ALJ’s decision finding 19 Dr. Eisenhauer’s opinion persuasive based on consistency with the longitudinal record is not 20 supported by substantial evidence. 21 // 22 // 23 // 1 CONCLUSION 2 For the reasons set forth above, this matter is REVERSED and REMANDED for further 3 administrative proceedings.

4 DATED this 18th day of April, 2022.

5 A 6 MARY ALICE THEILER 7 United States Magistrate Judge 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23