Curtin v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: January 25, 2023
• Docket: 2:21-cv-00790
• Status: Unknown

Opinion

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

9 Michael Jay Curtin, No. CV-21-00790-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Plaintiff challenges the denial of his application for disability insurance benefits 17 under Title II of the Social Security Act (“the Act”) by Defendant, the Commissioner of 18 the Social Security Administration (“Commissioner” or “Defendant”). Having reviewed 19 the briefs (Docs. 15, 19, 20) and Administrative Record (Doc. 14, AR.), the Court now 20 reverses the Administrative Law Judge’s (“ALJ”) decision and remands for additional 21 proceedings consistent with this order. 22 I. THE SEQUENTIAL EVALUATION PROCESS AND JUDICIAL REVIEW 23 To determine whether a claimant is disabled for purposes of the Act, the ALJ 24 follows a five-step process. E.g., 20 C.F.R. § 404.1520(a)(4). The claimant bears the 25 burden of proof at the first four steps, but the burden shifts to the Commissioner at step 26 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 27 determines whether the claimant is engaging in substantial, gainful work activity. 20 C.F.R. 28 § 404.1520(a)(4)(i). If the Plaintiff is engaged in such work, he is not disabled. Id. If he is 1 not engaged in substantial gainful work activity, the analysis proceeds. See id. At step two, 2 the ALJ determines whether the claimant has a “severe” medically determinable physical 3 or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the Plaintiff does not, he is not 4 disabled. Id. If he does, the analysis proceeds to step three. See id. At step three, the ALJ 5 considers whether the claimant’s impairment or combination of impairments meets or is 6 medically equivalent to an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 7 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is disabled. Id. If not, the ALJ will 8 assess the claimant’s residual functional capacity (“RFC”) and proceed to step four, where 9 the ALJ determines whether the claimant is still capable of performing his past relevant 10 work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can perform his past relevant work, 11 he is not disabled. Id. If he cannot, the analysis proceeds to the fifth and final step, where 12 the ALJ determines if the claimant can perform any other work in the national economy 13 based on his RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If 14 the claimant cannot, he is disabled. Id. 15 This Court may set aside the Commissioner’s disability determination only if the 16 determination is not supported by substantial evidence or is based on legal error. Orn v. 17 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere 18 scintilla but less than a preponderance. It is such relevant evidence as a reasonable mind 19 might accept as adequate to support a conclusion.” Id. (cleaned up). In determining whether 20 substantial evidence supports a decision, the court “must consider the entire record as a 21 whole and may not affirm simply by isolating a specific quantum of supporting evidence.” 22 Id. (quotations and citations omitted). As a general rule, “[w]here the evidence is 23 susceptible to more than one rational interpretation, one of which supports the ALJ’s 24 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 25 (9th Cir. 2002) (citations omitted). 26 II. PROCEDURAL HISTORY 27 Plaintiff filed an application for Title II disability benefits on November 21, 2018 28 1 alleging disability beginning January 1, 2015.1 (AR. at 232-33.) Plaintiff’s date last insured 2 (“DLI”) for the purposes of this application—the date by which his disability must be 3 established under Title II2—is December 31, 2019. (AR. at 16.) The agency denied 4 Plaintiff’s claim at the initial and reconsideration phases of administrative review (AR. at 5 150-53, 157-62), and Plaintiff timely requested a hearing before an ALJ (AR. at 163-64). 6 ALJ Robert Kelly presided over a telephonic hearing on August 17, 2020 at which Plaintiff 7 and vocational expert (“VE”) Robin Cook testified. (AR. at 55-81.) At the hearing, Plaintiff 8 amended his alleged onset date to October 25, 2017. (AR. at 56.) ALJ Kelly issued an 9 unfavorable decision on September 28, 2020. (AR. at 13-29.) Plaintiff appealed (AR. at 10 230-31, 347-54), and the Social Security Appeals Council denied review in a letter dated 11 March 4, 2021 (AR. at 1-3). Plaintiff filed the complaint initiating this civil action on May 12 4, 2021. (Doc. 1.) 13 In the unfavorable decision, the ALJ found Plaintiff had not engaged in 14 disqualifying substantial, gainful work activity, and that he suffered from severe 15 impairments including ischemic heart disease, status-post pacemaker implantation, 16 coronary artery disease, and obesity. (AR. at 16-17.) The ALJ found Plaintiff’s 17 impairments did not meet and were not medically equivalent to any listed impairment at 18 step three, and that Plaintiff retained the ability to perform sedentary work, with a five- 19 minute “sit-stand option” every hour, and various postural and environmental limitations, 20 such as the need to avoid more than occasional exposure to pulmonary irritants. (AR. at 21 1 Plaintiff filed prior applications for benefits in January 2015 which an ALJ denied after a 22 hearing in July 2017. (AR. at 32-54, 85-95.) By virtue of administrative res judicata, a presumption of continuing non-disability takes hold and applies to the period after the 23 previous unfavorable ALJ decision. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995) (amended April 9, 1996) superseded by regulations on other grounds as recognized in 24 Farlow v. Kijakazi, 53 F. 4th 485, 488 (9th Cir. 2022). Plaintiff may rebut this presumption on his new application by providing evidence of “changed circumstances.” Id. (citations 25 omitted). Changed circumstances can include evidence of a new impairment not previously considered. Id. at 827. In the September 2020 decision at issue here, the ALJ concluded 26 “there is a change in circumstance, as there have been changes to [Plaintiff’s] condition since the 2017 decision.” (AR. at 16, citations omitted). As such, the ALJ engaged in “new 27 analysis of [Plaintiff’s] [RFC], impairments, and ability to perform past relevant work.” (AR. at 16.) 28 2 Wellington v. Berryhill, 878 F.3d 867, 872 (9th Cir. 2017). 1 19.) The ALJ found Plaintiff capable of performing his own past relevant work at step four. 2 (AR. at 23.) 3 III. DISCUSSION 4 Plaintiff raises three issues on appeal: (1) whether the ALJ erred by finding 5 Plaintiff’s mental impairments not severe; (2) whether the ALJ erred by rejecting the 6 opinions of Plaintiff’s treating providers and a consultative examiner; and (3) whether the 7 ALJ erred by rejecting Plaintiff’s symptom testimony. (Pl. Br. at 1.) The ALJ did err by 8 discrediting the opinions of two of Plaintiff’s treating physicians. The matter is, thus, 9 remanded for further proceedings. 10 A. The ALJ’s step two findings 11 At step two of the sequential evaluation process, the ALJ found Plaintiff suffered 12 from severe, medically-determinable physical impairments, but that Plaintiff’s depression 13 and anxiety “did not cause more than minimal limitation in the claimant’s ability to perform 14 basic mental work activities and were therefore non-severe.” (AR. at 17.) The ALJ 15 evaluated the evidence under the “four broad functional areas” known as the “Paragraph B 16 criteria” used to evaluate the severity of mental impairments at step two. (AR. at 17.) The 17 ALJ found Plaintiff suffered only a mild limitation in the areas of understanding, 18 remembering, and applying information; interacting with others; and adapting or managing 19 oneself; and that Plaintiff had no limitation in concentrating, persisting, or maintaining 20 pace. (AR. at 17.) 21 A finding of medical severity at step two “is merely a threshold determination meant 22 to screen out weak claims. It is not meant to identify the impairments that should be taken 23 into account when determining the RFC.” Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th 24 Cir. 2017) (cleaned up). In assessing RFC, the ALJ must account for all of the claimant’s 25 restrictions and limitations, even those imposed by non-severe impairments. Id. at 1049 26 (citations omitted). If the ALJ finds a claimant suffers severe impairments at step two, that 27 claimant is not prejudiced by any step two error. Id.; Heller v. Comm’r of Soc. Sec. Admin., 28 No. CV-17-00243-TUC-DTF, 2018 WL 4377162, at *4-6 (D. Ariz. Sept. 14, 2018) (citing 1 Buck), aff’d sub nom. Heller v. Saul, 794 F. App’x 644 (9th Cir. 2020); Deckard v. Saul, 2 No. 18-CV-04301-BLF, 2020 WL 1157026, at *4 (N.D. Cal. Mar. 10, 2020) (citing Buck). 3 Here, the ALJ properly supported his analysis of the Paragraph B criteria with 4 substantial evidence from the record. The ALJ cited mental status examinations revealing 5 “many normal findings” (AR. at 18, citing 358, 509, 753, 756, 781, 837; 1066, 1100 1163); 6 Plaintiff’s increased activity levels (AR. at 18, citing 1211, 1217, 1223); and the 7 effectiveness of his medication (AR. at 18 citing 794, 1046). Plaintiff draws attention to 8 the ALJ’s statement that Plaintiff “could live in a house with his family[,]” as evidence of 9 his functionality. (Pl. Br. at 16, citations omitted.) (“Outrageously, the ALJ claims the 10 claimant’s mental impairments are not severe because ‘he could live in a house with his 11 family’, apparently ignoring that given his poverty he has no other choice except 12 homelessness.”) But the ALJ’s analysis of the issue extends beyond that deficient assertion. 13 In any event, the ALJ concluded that Plaintiff suffered other severe impairments 14 and proceeded with the sequential evaluation, thus, Plaintiff “could not possibly have been 15 prejudiced[]” on the basis of any step two error. Buck 869 F.3d at 1049. The question is 16 whether the ALJ properly accounted for Plaintiff’s mental health impairments in 17 formulating the RFC. Id. (citing Titles II & XVI: Assessing Residual Functional Capacity 18 in Initial Claims, Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *5 (S.S.A. 19 July 2, 1996)). In his discussion of RFC, the ALJ considered the mental limitations 20 assigned by all medical sources, including the psychological examiner, Dr. Hauke, and the 21 treating mental health nurse practitioner, Ms. Gaines. (AR. at 22.) The ALJ found each 22 opinion unpersuasive for several reasons, including Plaintiff’s generally normal mental 23 findings, “high level” of individual functioning, and response to medications. (AR. at 22.) 24 For the reasons explained in further detail below, the ALJ cited sufficient reasons for 25 finding the opinions of Dr. Hauke and nurse practitioner Gaines unpersuasive. While there 26 is substantial evidence in the record to support the ALJ’s step two findings and his decision 27 to omit limitations related to Plaintiff’s depression and anxiety from the RFC, the ALJ 28 nevertheless erred with respect to his assessment of Dr. Lababidi’s and Dr. Bierman’s 1 opinions. 2 B. The medical opinions 3 Under regulations governing the evaluation of medical opinion evidence for 4 disability claims filed on or after March 27, 2017, the ALJ will not defer to a medical 5 opinion based upon the existence of a treating or examining relationship. 20 C.F.R. 6 § 404.1520c(a). Instead, he must only articulate how he considered two factors: 7 supportability and consistency. 20 C.F.R. § 404.1520c(b)(2). The regulations explain that, 8 regarding supportability, “[t]he more relevant the objective medical evidence and 9 supporting explanations presented by a medical source are to support his or her medical 10 opinion(s) . . . the more persuasive the medical opinions . . .will be.” 20 C.F.R. 11 § 404.1520c(c)(1). Regarding consistency, “[t]he more consistent a medical opinion(s) . . . 12 is with the evidence from other medical sources . . ., the more persuasive the medical 13 opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2). While the ALJ must also consider 14 other factors, such as the existence of a treating or examining relationship and the 15 frequency with which the provider examined the claimant, the ALJ is not required to 16 explain how he considered them unless he “find[s] that two or more medical opinions . . . 17 about the same issue are both equally well-supported . . . and consistent with the record . . . 18 but are not exactly the same[.]” 20 C.F.R. § 404.1520c(b)(3). In Woods v. Kijakazi, the 19 Ninth Circuit recently held that for cases to which the new regulations apply, ALJs are no 20 longer required to cite “clear and convincing” or “specific and legitimate” reasons to reject 21 a treating or examining physician’s opinion. 32 F.4th 785, 787, 792 (9th Cir. 2022). Instead, 22 ALJs must now articulate how persuasive each medical opinion is using the supportability 23 and consistency factors, and their explanations must be supported by substantial evidence. 24 Id. 25 Plaintiff challenges the ALJ decision that the opinions of four different providers 26 were unpersuasive—Plaintiff’s cardiologist, Dr. Lababidi; Plaintiff’s treating primary care 27 physician, Dr. Bierman; his treating mental health nurse practitioner, Ms. Courtney Gaines; 28 and the psychological consultative examiner, Dr. Hauke. (Pl. Br. at 18-22.) The Court will 1 address each opinion in turn. 2 1. Plaintiff’s treating cardiologist, Dr. Zaki Lababidi 3 Plaintiff’s treating cardiologist, Dr. Lababidi, completed an assessment of Plaintiff’s 4 functioning on August 5, 2020 wherein he assigned to Plaintiff significant physical and 5 mental limitations and identified and described Plaintiff’s symptoms. (AR. at 1240-43.) 6 Dr. Lababidi concluded, for instance, that Plaintiff could only stand or walk for less than 7 two hours, and sit for “about 2 hours,” in an eight-hour workday. (AR. at 1241.) He opined 8 Plaintiff “cannot walk distances,” that he would need unscheduled breaks and to elevate 9 his legs to chair level, and that he should “avoid sitting for prolonged periods of time[.]” 10 (AR. at 1241-42.) He identified specific objective evidence that proved the existence of 11 Plaintiff’s impairments, and noted Plaintiff experienced symptoms such as chest pain, 12 exertional dyspnea, anginal equivalent pain, exercise intolerance, dyspnea at rest, 13 peripheral edema, chronic fatigue, and nausea. (AR. at 1240.) He opined that stress can 14 exacerbate Plaintiff’s symptoms resulting in the inability to perform even “low stress” 15 work, and that Plaintiff should “avoid all exposure” to environmental irritants, such as 16 cigarette smoke, perfumes, odors, gases, dust, chemicals, and cleaning products. (AR. at 17 1241-42.) Dr. Lababidi concluded Plaintiff’s various symptoms would interfere with his 18 attention and concentration for 25% or more of the workday, and that he would miss at 19 least four days of work per month due to his symptoms. (AR. at 1241-43.) Dr. Lababidi 20 stated he had treated Plaintiff since 2010 (AR. at 1240), and that the limitations he assessed 21 existed as early as 2013 (AR. at 1243). 22 The ALJ found this report unpersuasive, as it was “not supported by and[ ]not 23 consistent with the evidence.” (AR. at 23.) The ALJ explained that the opinion was given 24 eight months after Plaintiff’s DLI, “and there is no statement that such limitations related 25 back to the period at issue.” (AR. at 23.) The ALJ found Dr. Lababidi’s environmental 26 limitations were “extreme,” and “impossible to meet for all but the most sanitized 27 conditions and workplaces” including “most living spaces.” (AR. at 23.) The ALJ finally 28 noted “there is no explanation with evidence for many of the specific limitations found.” 1 (AR. at 23.) 2 The ALJ’s reasoning that Dr. Lababidi did not relate his limitations back to the 3 period at issue is erroneous: Dr. Lababidi concluded, “to a reasonable degree of medical 4 certainty,” that the limitations he assigned existed as early as 2013. (AR. at 1243.) 5 Defendant argues that Plaintiff testified he was working at that time (Def. Br. at 14), but, 6 while the ALJ might have used that fact to limit his acceptance of Dr. Lababidi’s opinion, 7 he did not, and thus the Defendant is precluded from arguing the point. Bray v. Comm’r 8 of Soc. Sec., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of 9 administrative law require us to review the ALJ’s decision based on the reasoning and 10 factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit 11 what the adjudicator may have been thinking.”) (citations omitted). The ALJ repudiated 12 Dr. Lababidi’s opinion on the basis that the doctor failed to specify that the limitations 13 existed during the relevant period, not that Plaintiff was working when those restrictions 14 allegedly took effect. (AR. at 23.) Plaintiff does bear the burden of proving disability prior 15 to his DLI, e.g., Lair-Del Rio v. Astrue, 380 F. App’x 694, 695 (9th Cir. 2010) 16 (unpublished), but medical opinions dated after the claimant’s DLI are still relevant, Lester, 17 81 F.3d at 832.3 18 To be sure, the ALJ has the ability to determine whether the environmental 19 restrictions required by Dr. Lababidi’s assessment are supported by, or consistent with, the 20 medical record. But merely characterizing them as “extreme” without addressing 21 supportability and/or consistency, or addressing any other permissible consideration listed 22 under 20 C.F.R. § 404.1520c(c) does not support the ALJ’s rejection of Dr. Lababidi’s 23 opinion. The statement does underscore the impact of the extensive limitations on available 24 jobs and Plaintiff’s ability to work, but it does not indicate whether they are internally 25 supported or consistent with the record. (AR. at 23.) Under the prior regulations, the Ninth 26 Circuit seemed to accept something like this reasoning but in doing so it also explicitly

27 3 Although Lester applied prior case law recognizing the hierarchy of medical opinions, 81 F.3d at 830-31, post-DLI opinion evidence that supports the existence of limitations during 28 the relevant period is still relevant under 20 C.F.R. § 404.1520c. 1 noted what was not stated reasoning by the ALJ here—an absence from the claimant’s 2 medical record of support for the limitations listed. See Rollins v. Massanari, 261 F.3d 3 853, 856 (9th Cir. 2001) (affirming the ALJ when the rejected doctor’s opinion was 4 extreme and implausible and when there was no record support from any doctor’s treatment 5 notes, no indication from the record what the limitations were based upon, and no 6 testimony from the claimant stating she had difficulty with the activities in question). Here, 7 given Plaintiff’s long history of pulmonary and cardiac impairments, there is at least 8 support for some limitation on exposure to certain environmental hazards, such as 9 pulmonary irritants.4 Several medical providers who were prompted to opine as to 10 Plaintiff’s environmental restrictions opined that he would have such restrictions to varying 11 degrees. (AR. at 125, 144, 1242.) In Rollins, to the contrary, the limitations were wholly 12 unjustifiable in the record, as “[t]here [was] no indication in the record what the basis for 13 these restrictions might be . . . .” Rollins, 261 F.3d at 856. 14 The ALJ’s failure to discuss the other specific limitations Dr. Lababidi assigned was 15 also error in this case. While the ALJ rejected the environmental limitations Dr. Lababidi 16 described, the ALJ did not account for other specific limitations, including Plaintiff’s need 17 to elevate his legs to chair level while seated. (AR. at 21.) Defendant counters, “Plaintiff 18 has provided no supporting evidence from Dr. Lababidi’s check-box form to support the 19 opinion that he would be required to elevate his legs during a working day[,]” but Dr. 20 Lababidi stated this accommodation would be necessary due to Plaintiff’s lower extremity 21 edema (AR. at 1242), which has at least some support in the record (AR. at 427, 436-37, 22 1117, 1120, 1218, 1220-21). Defendant further counters that the ALJ’s five-minute sit- 23 stand option every hour would be sufficient to accommodate Plaintiff’s edema (Def. Br. at 24 13-14), but Dr. Lababidi concluded Plaintiff could sit for only “about 2 hours” of a day 25 cumulatively (the ALJ concluded Plaintiff could sit for six hours), and that he would be 26 4 Plaintiff testified he experiences shortness of breath and chest pains consisting of sharp 27 and pressure-like pain. (AR. at 62, 67.) He received pulmonologist treatment during the relevant period for obstructive sleep apnea and anti-coagulant medication subsequent to a 28 pulmonary embolism. (AR. at 395-420, 999-1008.) 1 unable to engage in prolonged sitting. (AR. at 1241-42.) Thus, the sit-stand option does not 2 address the doctor’s expressed concerns. Further, by singling out the “extreme” 3 environmental limitations, the ALJ effectively ignored the many other specific limitations 4 that have support in the record. “[A]n RFC that fails to take into account a claimant's 5 limitations is defective.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th 6 Cir. 2009). 7 Finally, the ALJ concluded that “there is no explanation with evidence for many of 8 the specific limitations [Dr. Lababidi] found,” but this rationale is also not supported by 9 substantial evidence. Dr. Lababidi completed a form that consists of check-marked 10 limitations with some, but not extensive, narrative explanation. (AR. at 1240-43.) When 11 prompted to identify “clinical findings, laboratory and test results that show [Plaintiff’s] 12 impairments[,]” for instance, Dr. Lababidi cited nuclear stress testing showing “a large, 13 fixed inferior wall defect with mild-mod[erate] lateral ischemia.” (AR. at 1240.) Dr. 14 Lababidi described Plaintiff’s symptoms as “chest pressure, substernal occurring with 15 increased activity . . . .” (AR. at 1240.) He noted angina episodes occur “at least once daily 16 if not more,” and that Plaintiff typically would rest for “at least 2-3 hours” after each 17 episode. (AR. at 1240.) Dr. Lababidi remarked that stress increases Plaintiff’s shortness of 18 breath, anxiety, and chest pain, and that his physical condition caused emotional difficulties 19 such as depression and chronic anxiety which contributed to his symptoms and limitations. 20 (AR. at 1241.) He indicated Plaintiff’s chest pain and shortness of breath would necessitate 21 unscheduled breaks causing him to need to lie down, and that he would need to elevate his 22 legs to chair-level due to edema. (AR. at 1242.) He estimated Plaintiff would likely be 23 absent from work more than four days per month due to daily chest pain and shortness of 24 breath. (AR. at 1243.) When prompted to explain other limitations, Dr. Lababidi stated 25 Plaintiff “has moderate [chest pain], [shortness of breath] upon activity or exertion, stress 26 worsens his symptoms; [and] he should avoid confrontational situations.” (AR. at 1243.) 27 The ALJ is correct that a number of the doctor’s specific conclusions are not 28 accompanied by any commentary. For instance, on the form, Dr. Lababidi was prompted 1 to explain how Plaintiff’s physical symptoms and limitations would cause emotional 2 difficulties, but he did not explain. (AR. at 1241.) Dr. Lababidi did not cite or explain the 3 specific evidence underlying Plaintiff’s sitting, standing, walking, lifting, postural, and 4 environmental limitations (AR. at 1241-42), and he offered no explanation for his 5 conclusion Plaintiff’s symptoms would result in his being off-task 25% or more in a 6 workday. (AR. at 1243.) Importantly, however, Dr. Lababidi was not prompted on the form 7 to explain his answers to each question (AR. at 1241-43), and, as noted above, Dr. Lababidi 8 already explained Plaintiff’s diagnoses, symptoms, and the objective evidence supporting 9 each. (AR. at 1240.) Nevertheless, when Dr. Lababidi has offered reasons and the medical 10 records support limitations which may be sufficient to render the Plaintiff disabled, the 11 ALJ is not free to discount them solely because of the Doctor’s failure to justify other 12 limitations that he states are necessary. Id. citing Molina v. Astrue, 674 F.3d 1104, 1111 13 (9th Cir. 2012) (superseded on other grounds), See Burrell v. Colvin, 775 F.3d 1133, 1140 14 (9th Cir. 2014) (under the specific-and-legitimate reasons standard, holding that although 15 the doctor’s opinion was in “check-box” form with “almost no detail or explanation,” the 16 ALJ erred by rejecting the doctor’s opinion on the basis it was conclusory and poorly 17 explained because the record, including that doctor’s extensive treatment notes and the 18 claimant’s testimony, supported the doctor’s conclusions); Garrison v. Colvin, 759 F.3d 19 995, 1014 n. 17 (9th Cir. 2014) (rejecting the check-box-form argument because the forms 20 in question “did not stand alone: they reflected and were entirely consistent with the 21 hundreds of pages of treatment notes created by [the doctors] in the course of their 22 relationship with [the claimant].”) 23 This analysis does not change despite the regulatory shift in the approach to medical 24 opinions: while courts no longer afford deference to the opinions of treating or examining 25 physicians, Woods, 32 F.4th at 787, the supportability of a physician’s opinion necessarily 26 still includes a review of that doctor’s treatment notes, not just the narrative explanation on 27 the form. Compare 20 C.F.R. § 404.1520c(c)(1) (“The more relevant the objective medical 28 evidence and supporting explanations presented by a medical source are to support his or 1 her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.”) 2 (emphasis added) with id. § 404.1520c(c)(2) (“The more consistent a medical 3 opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in 4 the claim, the more persuasive the medical opinion(s) . . . will be.”) (emphasis added); see 5 also 20 C.F.R. § 404.1502(f) (“Objective medical evidence means signs, laboratory 6 findings, or both.”); Sollars v. Kijakazi, No. CV-20-58-BU-BMM, 2021 WL 4963611, at 7 *4-5 (D. Mont. Oct. 26, 2021) (holding the reasoning from Burrell still applies with respect 8 to the supportability and consistency factors despite the regulatory change). As to whether 9 an opinion is supported within the meaning of § 404.1520c(c)(1), the doctor’s notes must 10 be considered. 11 A proper analysis of this issue involves Dr. Lababidi’s treatment notes, which span 12 the relevant period. (AR. at 426-453, 720-25, 1209-1235.) These notes reveal that Dr. 13 Lababidi, consistent with his assessment, routinely documented Plaintiff’s reports of 14 persistent chest pain and tightness, fatigue, shortness of breath, and edema. (AR. at 430, 15 434, 438, 722, 1220.) Dr. Lababidi’s notes include objective testing, such as a treadmill 16 test showing Plaintiff’s poor functional capacity (AR. at 452) and echocardiogram results 17 showing an estimated ejection fraction of 35%, among other findings. (AR. 446.) The Court 18 is persuaded that Dr. Lababidi’s documentation of Plaintiff’s complaints, the objective 19 testing, and Plaintiff’s symptom testimony,5 provide at least some support for the 20 conclusions he reached. Burrell, 775 F.3d at 1140. Consequently, substantial evidence does 21 not corroborate the ALJ’s reasoning that Dr. Lababidi’s opinion is unsupported. 22 Defendant argues the ALJ asserted generally that Dr. Lababidi’s opinion is “not 23 consistent with the evidence” the ALJ had summarized earlier in the decision. (Def. Br. at 24 12-13.) Reading the ALJ decision straightforwardly, however, it appears the ALJ cited 25 three distinct reasons why Dr. Lababidi’s opinion was “not supported by” and “not 26 consistent with” the evidence: (1) that the doctor completed the form eight months after

27 5 Plaintiff testified he can only walk 50 to 100 feet before needing rest, and that he reclines and elevates his legs “probably most of the day” on the advice of his treating providers. 28 (AR. at 68, 70.) He testified he can only sit for 30 minutes before needing to change positions due to leg swelling. (AR. at 71.) 1 the date last insured and did not “relate” the limitations back to the relevant period before 2 Plaintiff’s DLI; (2) that the environmental limitations the doctor assigned are extreme; and 3 (3) that he failed to explain some limitations he assigned. (AR. at 23.) Each of these reasons 4 is insufficient for the reasons explained above, and this Court is “constrained to review the 5 reasons the ALJ asserts.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) 6 (citations and quotations omitted). 7 While it may have been the ALJ’s intent to refute Dr. Lababidi’s report based on 8 inconsistencies between it and the larger evidentiary record, the ALJ did not make this 9 point clear or cite specific supportive evidence. (AR. at 23.) While the Ninth Circuit in 10 Woods held that “an ALJ’s decision, including the decision to discredit any medical 11 opinion, must simply be supported by substantial evidence[,]” Woods, 32 F.4th at 787, the 12 Court clarified—citing the new regulations—that “[t]he agency must articulate how 13 persuasive it finds all of the medical opinions from each doctor or other source, and explain 14 how it considered the supportability and consistency factors in reaching these findings[,]” 15 id. at 792 (cleaned up) (emphasis added). The bald assertion that an opinion is “not 16 consistent with the evidence” does nothing to explain how or why, and while in many cases 17 a reasonable inference can be made tying the ALJ’s conclusion to the uncited evidence 18 supporting that conclusion, here it is unclear what specific evidence the ALJ found belies 19 Dr. Lababidi’s opinions. See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (“[T]he 20 ALJ must provide sufficient reasoning that allows us to perform our own review, because 21 the grounds upon which an administrative order must be judged are those upon which the 22 record discloses that its action was based.”) (internal citations and quotation marks 23 omitted); see also Carrie D. v. Kijakazi, No. 1:20-CV-03227-LRS, 2022 WL 2901010, at 24 *6 (E.D. Wash. June 6, 2022) (holding the ALJ’s general reference to normal clinical 25 findings and the lack of support from the doctor’s treatment notes is “an insufficient 26 explanation under Woods” when the ALJ provided no citation to the record in support). 27 For the reasons stated above, the Court finds the ALJ did not cite reasons supported by 28 substantial evidence for rejecting Dr. Lababidi’s opinion. 1 2. Plaintiff’s treating family doctor, Dr. Bierman 2 On June 18, 2020, Plaintiff’s treating family doctor, Dr. Robert Bierman, completed 3 a “Physical Medical Source Statement” outlining Plaintiff’s limitations resulting from 4 congestive heart failure and ischemic heart disease. (AR. at 1042.) Dr. Bierman noted 5 Plaintiff’s symptoms of chronic dyspnea and fatigue, shortness of breath, chest pain at rest 6 or with exertion, dizziness, and depression. (AR. at 1042.) He indicated that “emotional 7 factors,” including depression and anxiety, “contribute to the severity of [Plaintiff’s] 8 symptoms and functional limitations[,]” and that these symptoms would frequently be 9 severe enough to interfere with Plaintiff’s attention and concentration. (AR. at 1042-43.) 10 Dr. Bierman indicated Plaintiff could not perform “even low stress jobs[,]” that he could 11 walk less than one city block, sit for only one hour at a time and “about 2 hours” in an 12 eight-hour day, stand for only 15 minutes at one time and for less than two hours in a day, 13 and that he would need unscheduled breaks lasting 15 to 30 minutes. (AR. at 1043.) Dr. 14 Bierman initially indicated the earliest date those symptoms and limitations applied was 15 the date of the form, June 18, 2020 (AR. at 1045), but in a subsequent, amended version of 16 the same form, Dr. Bierman indicated the symptoms and limitations began in September 17 2015. (AR. at 1239.) 18 In the decision, the ALJ deemed this opinion unpersuasive, as it was “not supported 19 by and[ ]not consistent with the evidence.” (AR. at 23.) The ALJ noted the opinion post- 20 dated Plaintiff’s date last insured and “[did] not contain any explanation if [it] related back 21 to the period at issue.” (AR. at 23.) The ALJ also noted “there is no explanation or citation 22 to evidence for the specific limitations, and there is no[] explanation for the hourly break 23 requirement.” (AR. at 23.) 24 Again, as with Dr. Lababidi’s opinion, the ALJ erred when he stated the assessments 25 “do not contain any explanation if they related back to the period at issue.” (AR. at 23.) Dr. 26 Bierman clearly related those limitations back to the relevant period in the amended form. 27 (AR. at 1236.) Also, as with Dr. Lababidi’s assessment, there is support both on the form 28 and in Dr. Bierman’s treatment notes for the conclusions he reached. On the form, Dr. 1 Bierman noted that Plaintiff suffered from congestive heart failure and ischemic heart 2 disease and that his prognosis was poor. (AR. at 1236.) He stated Plaintiff suffered from 3 chronic fatigue and shortness of breath and chest pain at rest or exertion, and he cited 4 objective testing such as an angiogram showing multi-vessel, severe coronary artery 5 disease, and Plaintiff’s past history of stent placements and diminished ejection fraction on 6 echocardiogram. (AR. at 1236.) Dr. Bierman’s treatment records document Plaintiff’s 7 chronic dyspnea on exertion (AR. at 1092, 1096, 1119) and leg swelling (AR. at 1093, 8 1097, 1117), and that he was “poorly active” due to symptoms (AR. at 1092, 1096). A few 9 weeks before Plaintiff’s amended onset date, Dr. Bierman remarked that Plaintiff suffered 10 constant fatigue, among other symptoms, that he was “no longer able to work,” and that he 11 was “working on disability.” (AR. at 1119.) Dr. Bierman’s notes reflect he wrote and 12 signed a note for Plaintiff’s disability at that visit. (AR. at 1120.) The ALJ’s reasoning as 13 to the supportability of Dr. Bierman’s report is also not corroborated by substantial 14 evidence. 20 C.F.R. § 404.1520c(c)(1). Consequently, the ALJ also erred with respect to 15 Dr. Bierman. 16 3. The psychological consultative examiner, Dr. Farrah Hauke 17 On March 6, 2019, psychologist Farrah Hauke, Psy.D. conducted a records review, 18 interview, and examination of Plaintiff on behalf of the state’s Department of Economic 19 Security. (AR. at 809-13.) Dr. Hauke observed Plaintiff presented with normal attention 20 and concentration, a euthymic affect, and linear, logical, and goal-directed thinking. (AR. 21 at 811.) Dr. Hauke noted Plaintiff presented with organized speech and a normal rate and 22 tone, and that he “was not observed to be tearful, anxious, confused, irritable, or 23 distressed.” (AR. at 812.) She indicated Plaintiff presented as polite and cooperative, with 24 normal insight and judgment, good comprehension, normal short-term memory, and fair 25 long-term memory. (AR. at 812.) Plaintiff’s mental status examination was “well within 26 normal limits.” (AR. at 812.) Dr. Hauke concluded that Plaintiff’s symptoms met the 27 criteria “for at least one psychological diagnosis but his current functioning does not appear 28 to be impaired by psychological factors.” (AR. at 812.) She opined Plaintiff’s “primary 1 concerns, and reasons for not working, are his medical conditions. His psychiatric 2 symptoms appear to be secondary.” (AR. at 812.) In the accompanying medical source 3 statement, Dr. Hauke concluded Plaintiff could understand, remember, and carry-out 4 simple instructions, “but is not able to understand or remember detailed work-like 5 procedures on a consistent basis.” (AR. at 813.) She opined Plaintiff could sustain focus 6 for 45-minute intervals and interact appropriately, “but would require coaching and support 7 regarding neatness and attire before returning to the workplace environment.” (AR. at 813.) 8 She found he could be aware of normal hazards, respond appropriately to work setting 9 changes, and take appropriate action. (AR. at 813.) 10 The ALJ found Dr. Hauke’s opinion was “not supported by and is not consistent 11 with the evidence.” (AR. at 22.) The ALJ believed Dr. Hauke’s “moderate finding” in the 12 area of understanding and memory was “not consistent with the examination or the 13 evidence.” (AR. at 22.) In support, the ALJ cited Dr. Hauke’s normal mental status 14 findings, Plaintiff’s generally normal mental findings elsewhere, his ability to drive himself 15 to the examination, and his “high level of individual function.” (AR. at 22.) 16 Substantial evidence supports the ALJ’s conclusion that Dr. Hauke’s opinion is 17 inconsistent with the record and unsupported by her own examination. As noted earlier, 18 the ALJ is correct that the results of Dr. Hauke’s mental status examination of Plaintiff 19 were “well within normal limits” (AR. at 812), and that Dr. Hauke’s other observations 20 were generally normal. She documented, for instance, Plaintiff’s normal attention and 21 concentration, his euthymic affect and “logical, goal-directed and linear” thinking, and his 22 normal speech. (AR. at 811-12.) She stated Plaintiff “was not observed to be tearful, 23 anxious, confused, irritable, or distressed[,]” and documented other normal findings, 24 including Plaintiff’s insight, judgment, comprehension, and short-term memory. (AR. at 25 811-12.) She observed Plaintiff to be “polite and cooperative.” (AR. at 812.) 26 The ALJ is also correct Plaintiff had “many normal findings” upon mental status 27 examination in the record generally, some of which the ALJ cited elsewhere in the decision, 28 including an appropriate mood and affect (AR. at 18, citing 509, 753, 756, 837, 1100, 1 1163); normal or clear speech (AR. at 18, citing 753, 756, 759, 781); unremarkable or 2 logical thought processes (AR. at 18, citing 753, 759, 781); good insight or judgment (AR. 3 at 18, citing 756, 759, 781, 837, 1100, 1163); good memory (AR. at 18, citing 756, 759, 4 1100); and good concentration and attention span (AR. at 18, citing 756, 759). The ALJ’s 5 reasoning that Dr. Hauke’s opinion was inconsistent with the larger evidentiary record and 6 unsupported by her own examination is supported by substantial evidence. 20 C.F.R. 7 § 404.1520c(c)(1)-(2). Consequently, any error with respect to the ALJ’s other stated 8 reasons would be harmless. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th 9 Cir. 2006). The ALJ did not err with respect to Dr. Hauke. 10 4. Plaintiff’s treating mental health nurse practitioner, Courtney Gaines 11 On June 16, 2020, Plaintiff’s treating mental health provider, nurse practitioner 12 Courtney Gaines, completed a “Mental Medical Source Statement” assessing Plaintiff’s 13 mental health limitations. (AR. at 1036-41, 1200-05.) She noted Plaintiff “continues to 14 have fluctuations in mood, anxiety, and sleep” despite medications, and that he experiences 15 side effects including dizziness, insomnia, fatigue, and palpitations. (AR. at 1036.) She 16 noted his prognosis was poor. (AR. at 1036.) She assigned to Plaintiff “marked” limitations 17 in a host of mental health categories and extreme limitations in the areas of dealing with 18 the stress of semi-skilled work, interacting appropriately with the general public, travelling 19 to unfamiliar places, and using public transportation. (AR. at 1038-39.) She predicted 20 Plaintiff would be absent more than four days per month, and opined these limitations 21 existed as early as 2018. (AR. at 1040-41.) 22 The ALJ again deemed these opinions not persuasive on the basis they are “not 23 supported by” and “not consistent with” the evidence. (AR. at 22.) The ALJ noted these 24 opinions post-date Plaintiff’s date last insured by six months and “do not contain any 25 explanation if they related back to the period at issue.” (AR. at 22.) The ALJ found “there 26 is not [sic] explanation for such extreme findings,” that Plaintiff had “generally had normal 27 mental findings, he responded well to medication, and he had an overall high level of 28 mental function.” (AR. at 22.) 1 The ALJ’s rationale regarding the supportability and consistency of NP Gaines’ 2 opinion is supported by substantial evidence.6 NP Gaines assigned nearly uniform marked 3 limitations across two-dozen areas of functioning without explanation for her conclusions. 4 (AR. at 1038-39.) The ALJ again referred to Plaintiff’s predominately normal mental status 5 findings (which the ALJ cited earlier and can be found among NP Gaines’ treatment notes) 6 and reports of responding well to medication—assertions which are each supported by 7 substantial evidence as described above. NP Gaines’ notes contain scant support in the 8 form of mental status findings considering the numerous marked and extreme limitations 9 she assigned.7 Consequently, the ALJ did not err by rejecting NP Gaines’ opinion with the 10 reasons stated. 11 C. Plaintiff’s testimony 12 To properly evaluate a Plaintiff’s symptom testimony, the ALJ must first “determine 13 whether the claimant has presented objective medical evidence of an underlying 14 impairment which could reasonably be expected to produce the pain or other symptoms 15 alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal quotation 16 marks and citation omitted). Once the ALJ establishes the claimant has met the first step, 17 “and there is no evidence of malingering, the ALJ can reject the claimant’s testimony about 18 the severity of [his] symptoms only by offering specific, clear and convincing reasons for 19 doing so.” Id. (internal quotation marks and citation omitted). To that effect, “the ALJ may 20 consider, among other factors, ordinary techniques of credibility evaluation, inadequately 21 explained failure to seek treatment or to follow a prescribed course of treatment, and the 22 6 Again, the ALJ’s belief the provider failed to relate the limitations back to the relevant 23 period is incorrect. NP Gaines concluded Plaintiff had these limitations in 2018, well before his DLI. (AR. at 1041.) Considering that the ALJ provided other properly-supported 24 reasons, however, this error is harmless. Stout, 454 F.3d at 1055.

25 7 In October 2018 NP Gaines documented Plaintiff’s depressed, anxious mood, but cooperative attitude, clear speech, logical thought process, normal cognition, and normal 26 insight and judgment. (AR. at 802.) NP Gaines examined Plaintiff in January, March, May, June, September, and December 2019, and in March 2020. (AR. at 788-93, 1060-61, 1066, 27 1072-73, 1079-80, 1085-86.) She documented similar mental status findings throughout these exams, such as a depressed, anxious mood or attitude, but logical thought processes, 28 and normal thought content, insight, and judgment. (AR. at 788-93, 1060-61, 1066, 1072-73, 1079-80, 1085-86.) 1 claimant’s daily activities.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th 2 Cir. 2015) (quotations and citations omitted). An ALJ may also consider the statements of 3 physicians and other witnesses as to the claimant’s symptoms, functional limitations, and 4 daily activities. Id. (quotations and citations omitted). 5 Of particular importance here, while an ALJ may consider the claimant’s reported 6 activities, “[t]his line of reasoning clearly has its limits: The Social Security Act does not 7 require that claimants be utterly incapacitated to be eligible for benefits, and many home 8 activities are not easily transferable to what may be the more grueling environment of the 9 workplace, where it might be impossible to periodically rest or take medication.” Fair v. 10 Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citations omitted). But the ALJ may consider 11 activities transferable to a work setting if the claimant is able to spend “a substantial part 12 of his day” engaged in them. Id. “Even where those activities suggest some difficulty 13 functioning, they may be grounds for discrediting the claimant’s testimony to the extent 14 that they contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. 15 An ALJ may reject symptom testimony on the basis of activities that conflict with the 16 claimant’s statements about the severity of his symptoms. Valentine, 574 F.3d at 693. 17 Importantly, however, the ALJ “may not discredit the claimant’s testimony as to subjective 18 symptoms merely because they are unsupported by objective evidence.” Berry v. Astrue, 19 622 F.3d 1228, 1234 (9th Cir. 2010) (quotations omitted). 20 In the decision, the ALJ concluded that while Plaintiff’s impairments “could 21 reasonably be expected to cause some of the alleged symptoms . . . [his] statements 22 concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely 23 consistent with the medical evidence and other evidence in the record for the reasons 24 explained in this decision.” (AR. at 20.) After summarizing the medical evidence, the ALJ 25 cited evidence that “[Plaintiff’s] allegations concerning the physical impairments are not 26 consistent with the record[,]” such as evidence of normal gait, muscle strength, tone, and 27 sensation. (AR. at 21.) The ALJ also cited evidence that his nitroglycerine medication and 28 rest were sufficient to manage his chest pain and dyspnea symptoms, and that he had 1 generally “normal cardiovascular findings” upon examination. (AR. at 21.) The ALJ also 2 noted Plaintiff had been recommended for increased physical activity and exercise, and 3 that Plaintiff reported “doing more with regards to physical activity”, such as assisting with 4 his mother’s care, and performing his own daily activities such as housework. (AR. at 21.) 5 The ALJ also found that “some of [Plaintiff’s] own statements strike against the allegations 6 of physical disability[,]” such as his taking care of pets, going outside daily, and getting 7 around by walking, driving, or riding in a car. (AR. at 21-22.) The ALJ noted Plaintiff 8 reported shopping for food weekly “for about 2 to 3 hours at a time.” (AR. at 22.) 9 The Court finds the ALJ cited clear, convincing reasons supported by substantial 10 evidence for discrediting Plaintiff’s symptom testimony. Plaintiff’s activities, including the 11 statement in his December 2018 report of daily functioning that he shops for groceries in 12 stores “once a week for about 2-3 hours” belie his allegations of disabling physical 13 impairments. Molina, 674 F.3d at 1113. Although Plaintiff offered conflicting testimony 14 at the hearing in response to questioning about this statement (AR. at 74-75), “the ALJ ‘is 15 responsible for determining credibility, resolving conflicts in medical testimony, and for 16 resolving ambiguities.’” Ford, 950 F.3d at 1149 (9th Cir. 2020). The ALJ cited evidence 17 Plaintiff was able to engage in “activities of daily living without limitations,” “do some 18 housework with limitations,” and help care for his mother (AR. at 1211, 1217.) This is 19 clear, convincing reasoning supported by substantial evidence. As the ALJ cited at least 20 one clear, convincing reason for rejecting Plaintiff’s symptom testimony, any error with 21 respect to the other reasons the ALJ cited is harmless. 22 D. Remedy 23 In cases of error, “[t]he decision whether to remand a case for additional evidence, 24 or simply to award benefits is within the discretion of the court.” Sprague v. Bowen, 812 25 F.2d 1226, 1232 (9th Cir. 1987). Generally, the appropriate remedy is “remand to the 26 agency for further proceedings before directing an award of benefits[,]” Leon v. Berryhill, 27 880 F.3d 1041, 1045 (9th Cir. 2017) as amended (January 25, 2018), but the Court may 28 remand for the award of benefits if the following criteria are met: “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; 2|| (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether 3 || claimant testimony or medical opinion; and (3) if the improperly discredited evidence were 4|| credited as true, the ALJ would be required to find the claimant disabled on remand[,]” || Garrison, 759 F.3d at 1020. Even if the credit-as-true elements are satisfied, the Court has 6|| “flexibility to remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social 8 || Security Act.” Garrison, 759 F.3d at 1021. 9 The Court will remand for additional proceedings, as it pertains to the question of || disability. Plaintiff's reported ability to shop for groceries in stores for “about 2-3 □□□□□□ 11 || at a time without indicating a need for ambulatory assistance raises questions as to his || functional capacity (AR. at 74-75, 274, 277), considering he testified to limited standing 13) and walking ability (50-to-100 feet before needing rest).® (AR. at 68-70.) Plaintiff also gave testimony inconsistent with his reported lifting limitation of five pounds (AR. at 63), as he 15 || testified to lifting an object approximating 50 pounds on an earlier occasion. (AR. at 66.) 16 IT IS THEREFORE ORDERED reversing the September 28, 2020 decision of || the Administrative Law Judge (id. at 13-29) and remanding for further proceedings 18 || consistent with this opinion. 19 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 20 || consistent with this Order and to close this case. 21 Dated this 24th day of January, 2023. 22 _ “\ 23 A Whacrsay Fotos 24 Chief United States District Judge 25 26|| 8 The Court acknowledges Plaintiff provided testimony conflicting with this statement at 27|| TS) (citing Plaintiff's abiliy to shop for two-to-three hours at one timne), and a statement so dramatically at odds with the limitations Plaintiff testified to (AR. at 70) and that his 28 physicians assigned (AR. at 1237-38, 1241), raises serious questions as to the length of time Plaintiff can stand and walk.

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