Cyndi Marie Boulton v. Andrew Saul

Opinion

Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 1 of 19 Page ID #:914 O CYNDI B., ) Case No. 8:20-cv-01354-SP ) Plaintiff, ) ) v. ) MEMORANDUM OPINION AND ) ORDER ) KILOLO KIJAKAZI, Acting ) Commissioner of the Social Security ) Administration, ) ) ) Defendant. ) ) I. On July 26, 2020, plaintiff Cyndi B. filed a complaint against defendant, the Commissioner of the Social Security Administration (“Commissioner”), seeking review of a denial of a period of disability and disability insurance benefits (“DIB”). The parties have fully briefed the issues in dispute, and the court deems the matter suitable for adjudication without oral argument. Plaintiff presents three issues for decision: (1) whether the Administrative Law Judge (“ALJ”) properly considered plaintiff’s subjective symptom testimony; 1 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 2 of 19 Page ID #:915

(2) whether the ALJ properly considered the opinion of Drs. Michael Pingol and Zafar Khan; and (3) whether the appointment of former Commissioner of Social Security, Andrew Saul, was constitutional. Mem. in Supp. of Pl.’s Compl. (“P. Mem.”) at 6-25; Pl.’s Notice of New Authority (“Notice”) at 1-2; see Def.’s Mem. in Supp. of Answer (“D. Mem.”) at 1-16. Having carefully studied the parties’ memoranda, the Administrative Record (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, the ALJ properly evaluated plaintiff’s subjective symptom testimony. The ALJ also properly evaluated the opinion of Drs. Pingol and Khan, and any deficiency in analysis was harmless. Finally, the court rejects plaintiff’s constitutional argument as incomplete and contrary to law. The court therefore affirms the decision of the Commissioner denying benefits. II. Plaintiff, who was 44 years old on the alleged disability onset date, completed high school. AR at 54, 63. She has past relevant work as an order clerk, home attendant, and administrative clerk. AR at 48. On July 3, 2017, plaintiff filed an application for DIB, alleging an onset date of October 31, 2016. AR at 54-55. Plaintiff claimed she suffered from a bulging disc, uncontrollable diabetes, nerve damage on her left leg, asthma, and high cholesterol. AR at 55. Plaintiff’s application was initially denied on August 31, 2017. AR at 79. Plaintiff requested a hearing, which the assigned ALJ held on August 21, 2019. AR at 31. Plaintiff, represented by counsel, appeared and testified at the hearing. AR at 36-47. The ALJ also heard testimony from Kristan Cicero, a vocational expert. AR at 48-51. The ALJ denied plaintiff’s claim on October 17, 2019. See AR at 15-25. 2 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 3 of 19 Page ID #:916

Applying the well-established five-step sequential evaluation process, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since October 31, 2016, the alleged onset date. AR at 17. At step two, the ALJ found plaintiff suffered from the following severe impairments: lumbar spine degenerative disc status post bilateral hemilaminectomy at L5-S1; diabetes mellitus with peripheral neuropathy; obesity; right trigger thumb; and asthma. Id. The ALJ also found plaintiff suffered from the non-severe impairments of hypertension, hyperlipidemia, fibroids, constipation, splenomegaly, and migraines. AR at 18. At step three, the ALJ found plaintiff’s impairments, whether individually or in combination, did not meet or medically equal one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and determined she had the ability to perform: light work as defined in 20 CFR 404.1567(b) except she can lift and carry 20 pounds occasionally and 10 pounds frequently, stand and walk 6 hours in an 8-hour day, and sit 6 hours in an 8-hour day. She can occasionally climb, balance, stoop, kneel, crouch, and crawl. She can frequently finger with the right upper extremity. She cannot be exposed to atmospheric conditions. AR at 19. The ALJ found, at step four, that plaintiff was capable of performing her 1 Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 56 nn.5-7 (9th Cir. 1989) (citations omitted). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 3 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 4 of 19 Page ID #:917

past relevant work as a home attendant and administrative clerk. AR at 23. The ALJ also proceeded to analyze step five in the alternative. The ALJ determined that, considering plaintiff’s age, education, work experience, and RFC, there is a significant number of other jobs in the national economy that plaintiff can perform, including cashier II, marker, or routing clerk. AR at 24-25. The ALJ accordingly concluded plaintiff was not under a disability, as defined in the Social Security Act, at any time from October 31, 2016 through the date of her decision. AR at 25. Plaintiff filed a timely request for review of the ALJ’s decision, but the Appeals Council denied the request for review on May 29, 2020. AR at 1. Accordingly, the ALJ’s decision became the final decision of the Commissioner. This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration (“SSA”) must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). “Substantial evidence is more than a mere scintilla, but less than a preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial evidence is such “relevant evidence which a reasonable person might accept as adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether 4 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 5 of 19 Page ID #:918

substantial evidence supports the ALJ’s finding, the reviewing court must review the administrative record as a whole, “weighing both the evidence that supports and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (internal quotation marks and citation omitted). If the evidence can reasonably support either affirming or reversing the ALJ’s decision, the reviewing court “may not substitute its judgment for that of the ALJ.” Id. (internal quotation marks and citation omitted). IV. A. The ALJ Properly Evaluated Plaintiff’s Testimony Plaintiff argues the ALJ impermissibly rejected her subjective symptom testimony. P. Mem. at 6-17. Specifically, she contends the ALJ failed to provide legally sufficient rationale for rejecting her testimony pertaining to the impairments limiting her ability to do work on a sustained basis. Id. The court looks to Social Security Ruling (“SSR”) 16-3p for guidance on evaluating plaintiff’s alleged symptoms. SSR 16-3p rescinded and superseded SSR 96-7p and applies to decisions made on or after March 28, 2016. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). “Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all components of the Social Security Administration.” Id. (citing 20 C.F.R. § 402.35(b)(1)). In adopting SSR 16-3p, the SSA sought to “clarify that subjective symptom evaluation is not an examination of an individual’s character.” Id. at 2. [SSR 16-3p] makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to evaluate the intensity and persistence of symptoms after the ALJ finds 5 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 6 of 19 Page ID #:919

that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms, and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness. Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (cleaned up). To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (quoting Trevizo, 871 F.3d at 678). First, the ALJ must determine whether the claimant produced objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Id. Second, if the claimant satisfies the first step, and there is no evidence of malingering, the ALJ must evaluate the intensity and persistence of the claimant’s symptoms and determine the extent to which they limit her ability to perform work-related activities. Id. In assessing intensity and persistence, the ALJ may consider: a claimant’s daily activities; the location, duration, frequency, and intensity of the symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of medication taken to alleviate the symptoms; other treatment received; other measures used to relieve the symptoms; and other factors concerning the claimant’s functional limitations and restrictions due to the symptoms. Id. (citing 20 C.F.R. § 416.929; SSR 16-3p, 2017 WL 5180304, at *4; Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th Cir. 1996)). To reject the claimant’s subjective symptom statements, the ALJ must provide “specific, clear, and convincing” reasons, supported by substantial evidence in the record, for doing so. Id. at 921, 929. Here, at the first step for evaluating a claimant’s symptom testimony, the ALJ found plaintiff’s medically determinable impairments could reasonably be 6 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 7 of 19 Page ID #:920

expected to cause the symptoms alleged. AR at 20. At the second step, the ALJ discounted plaintiff’s testimony concerning the intensity, persistence, and limiting effects of her symptoms as not entirely consistent with the medical evidence and other evidence in the record. Id. Because plaintiff cleared step one and the ALJ found no evidence of malingering, the ALJ’s reasons for discounting plaintiff’s testimony had to be specific, clear, convincing, and supported by substantial evidence. The ALJ provided three reasons for discounting plaintiff’s testimony: (1) inconsistency with the medical record; (2) inconsistency with plaintiff’s ability to perform some work activities after the alleged onset date; and (3) plaintiff’s non- compliance with treatment. 1. Inconsistency With the Medical Evidence The ALJ first determined that plaintiff’s statements about the intensity, persistence, and limiting effects of her symptoms were inconsistent with the medical record. See AR at 20-22. Namely, the ALJ found that although the medical evidence reflected consistent complaints of lumbar-spine symptoms, it also showed many normal neurological findings. See AR at 20. The ALJ summarized plaintiff’s symptom testimony beginning with her allegation that she was unable to work due to her impairments. AR at 19 (citing AR at 173). On an exertion questionnaire from August 5, 2017, plaintiff claimed she could only walk 300 yards and could not lift items due to her back and leg pain. Id. (citing AR at 193-94). She was also having a hard time completing activities of daily living (“ADLs”) due to her impairments. Id. (citing AR at 193- 95). The ALJ also provided a thorough summary of the objective record starting with a November 2016 physical examination that revealed plaintiff had 5/5 strength, intact sensation, no focal neurological deficits, 2+ reflexes, and normal 7 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 8 of 19 Page ID #:921

gait. AR at 20 (citing AR at 545). In April 2017, an MRI of the lumbar spine showed 3mm broad-based disc protrusion bulge complex at L5-S1 with narrowing of the left intervertebral foramen. Id. (citing AR at 321). Despite this finding, a physical examination from June 2017 showed plaintiff had 1+ and symmetric deep tendon reflexes, 4/5 to 4+/5 strength in her lower extremities, and intact sensation. Id. (citing AR at 305). In August 2017, an examination revealed plaintiff was non- focal, had normal motor strength in her upper and lower extremities, and had intact sensation. Id. (citing AR at 340). In 2018, medical records continued to show plaintiff had 2+ reflexes bilaterally and no motor or sensory deficits. Id. (citing AR at 572, 579). Examinations from August and November also showed she had no focal neurological deficits, 5/5 strength in her extremities, and intact sensation. Id. (citing AR at 483, 586, 591). The ALJ acknowledged that a November 2018 X-ray of plaintiff’s lumbar spine revealed lumbar scoliosis, slight straightening of the lumbar lordosis, and facet joint arthropathy of the lower lumbar spine. Id. (citing AR at 348). Further, an MRI of the lumbar spine from November 20 showed disc desiccation and 4mm right posterior paracentral disc protrusion with some right lateral recess narrowing at L5-S1, 2mm left posterolateral disc protrusion with mild left foraminal narrowing, and persistent slight dextroconvex scoliosis of the lumbar spine. Id. (citing AR at 350). On January 22, 2019, plaintiff underwent medial branch blocks, sacroiliac joint injections on March 5, and lumbar laminectomy surgery on April 9. Id. (citing AR at 798-99, 801-02, 352, 444). These records appear to support plaintiff’s claims that she could only walk for 300 yards due to pain, could not lift items, and had a hard time completing activities of daily living. See AR at 19 (citing AR at 193-95); Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (ALJ must not cherrypick evidence). 8 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 9 of 19 Page ID #:922

Nevertheless, by May 2019, an examination showed she had normal sensation, motor function, balance, gait, and coordination. See AR at 21 (citing AR at 806). From May through June, plaintiff underwent physical therapy related to her lumbar surgery. Id. (citing AR at 770-85). A June 10 physical examination showed plaintiff had 5/5 strength. Id. (citing AR at 444); see also Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003) (ALJ’s finding that symptoms were controlled was clear and convincing reason to reject plaintiff’s testimony). After reviewing all of this objective medical evidence, the ALJ concluded that, overall, plaintiff’s testimony of extreme limitations was inconsistent with the mostly normal findings concerning strength, sensation reflexes, range of motion, coordination, balance, and gait. AR at 22 (citing AR at 545, 305, 340, 572 , 579, 483, 586, 591, 603, 354-58, 806). Plaintiff correctly notes that the treatment she pursued, including surgery, was not conservative. See P. Mem. at 15. But the court will not second-guess the ALJ’s determination that taking all of the objective medical evidence into account, plaintiff’s overall condition contradicted her claims of extreme incapacity. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” (citation omitted)). Plaintiff also contends the ALJ failed to connect any specific portions of her testimony to the parts of the record supporting the ALJ’s decision. See P. Mem. at 12. While the ALJ’s analysis could have been more explicit with respect to describing plaintiff’s testimony, on balance, the ALJ’s juxtaposition of plaintiff’s testimony with the inconsistent medical evidence is sufficiently clear for the court to evaluate. See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (ALJs are not required to “perform a line-by-line exegesis of the claimant’s testimony, nor do [the regulations] require ALJs to draft dissertations when denying benefits” (citation omitted)). The ALJ did clearly identify an inconsistency between 9 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 10 of 19 Page ID #:923

plaintiff’s statement that she stopped working at her most recent job in November 2018 because she was unable to walk (AR at 20 (citing AR at 36-37)) and her “medical exams from around that time show[ing] generally normal neurological findings.” Id. (citing AR at 586, 591 (showing plaintiff had no focal neurological deficits, intact sensation, and moves all extremities without any limitations)). For these reasons, inconsistency with the medical evidence was a specific, clear, and convincing reason, supported by substantial evidence, to discount plaintiff’s symptom testimony. 2. Inconsistency With Plaintiff’s Ability to Perform Some Work Activities After the Alleged Onset Date Next, although plaintiff claims she has been disabled since October 31, 2016, the ALJ noted that she trained for four weeks for a casino banker position and worked at a call center for two months sometime around the end of 2018. See AR at 20, 36-37, 154. The Ninth Circuit has held that “continued employment during the claimed disability period indicates that [the claimant] had sufficient functioning for employment during that time frame.” Rothery v. Berryhill, 684 Fed. Appx. 664, 664 (9th Cir. 2017); Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (finding that ALJ did not err in rejecting plaintiff’s testimony based on evidence that he completed a training course and sought work during the claimed disability period). Here, although the work at issue did not constitute substantial gainful activity due to insufficient wages, plaintiff still engaged in gainful work for about three months, two years after she claims she became disabled. Plaintiff testified that she stopped working at the end of 2018 because of excruciating pain that left her unable to walk. See AR at 36-37. The Ninth Circuit has cautioned that “[i]t does not follow from the fact that a claimant tried to work for a short period of time and, because of his impairments, failed, that he did not then experience pain and limitations severe enough to preclude him from 10 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 11 of 19 Page ID #:924

maintaining substantial gainful employment.” Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007). In such cases, evidence that a claimant tried to work and failed may actually support his or her allegations of disabling pain. Id. (citations omitted). Lingenfelter is distinguishable here for two reasons. First, in that case, the failed work attempt did not take place during the claimed disability period. Id. at 1039. Second, the ALJ here specifically found that plaintiff’s claim regarding the reason she stopped working was inconsistent with her medical exams from around that time, which showed generally normal neurological findings. See AR at 20; Nash v. Astrue, 2008 WL 4279399, at *11 (W.D. Wash. Sept. 12, 2008) (distinguishing Lingenfelter because the record did not contain “significant probative evidence that plaintiff was forced to quit working due to his impairments and limitations”). Moreover, plaintiff does not address this particular part of the ALJ’s reasoning. Instead, she appears to confuse this reason with a finding that her testimony was inconsistent with ADLs. See P. Mem. at 9-12. But that is a different type of reason, one that the ALJ did not rely on here. See AR at 20. The ALJ clearly referred to her “work activities” not her ADLs. Accordingly, inconsistency with performance of some work activities was also a sufficiently specific, clear, and convincing reason to discount plaintiff’s symptom testimony. 3. Plaintiff’s Non-Compliance With Treatment Finally, the ALJ indicated that plaintiff’s statement regarding her “uncontrollable” diabetes was contrary to the medical records showing that “this lack of control may be due to noncompliance.” AR at 20 (citing AR at 293). Indeed, a record from November 2016 shows that she refused to take her prescribed insulin until after Thanksgiving due to undisclosed side effects. See AR 11 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 12 of 19 Page ID #:925

at 293. In response to her provider giving her information about the effects of high blood sugar on vision, concentration, kidneys, blood vessels, and her body in general, she responded “I don’t care!” See id. The ALJ did not err in discounting plaintiff’s testimony for this reason because ALJs can consider “unexplained or inadequately explained failure[s] to seek treatment or to follow a prescribed course of treatment.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (internal quotation marks omitted). Failure to seek more aggressive treatment or follow a prescribed course of treatment may not be a convincing reason if the claimant has a good reason for not doing so. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). But although plaintiff complained of side effects from her diabetes medication, there is no evidence that the side effects were significant enough for her to be justified in refusing to follow treatment. In fact, it appears they were not, seeing that she was not refusing to ever take the medication, but rather wanted to wait until after the holidays. In any event, elsewhere in her decision, the ALJ also noted that there was no evidence in the record showing that plaintiff’s diabetes resulted in limitations greater than the stated residual functional capacity, and that plaintiff denied symptoms related to diabetes such as dizziness, polyuria, headaches, and numbness. AR at 21 (citing AR 267, 305, 307, 380, 383, 386, 389, 391, 393, 395, 397, 402, 481, 543, 577, 805). Accordingly, the court finds the ALJ’s reasons for rejecting plaintiff’s subjective symptom statements to be specific, clear, and convincing. The ALJ did not err in discounting plaintiff’s testimony. B. The ALJ Properly Considered Drs. Pingol’s and Khan’s Opinion Plaintiff also argues the ALJ failed to articulate a legally sufficient rationale to reject the opinion of Dr. Michael Pingol and Dr. Zafar Khan. P. Mem. at 17-25. Plaintiff contends substantial evidence does not support the ALJ’s determination 12 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 13 of 19 Page ID #:926

that their opinion is not consistent with the record. Id. For applications filed prior to March 27, 2017, SSA regulations implemented a hierarchical system for evaluating medical opinions. On March 27, 2017, new regulations became effective, which make several significant changes to the way that ALJs evaluate medical opinions. See 20 C.F.R. §§ 404.1520c (new DIB regulations), 416.920c (new SSI regulations). Under the new regulations, ALJs will no longer “defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a). Plaintiff filed her DIB application on July 5, 2017, so the March 27, 2017 regulations apply to this case. The new regulations establish a new method for evaluating medical opinions and prior administrative medical findings, which requires ALJs to consider five factors: (1) supportability; (2) consistency; (3) relationship with the claimant, including (i) the length of the treatment relationship, (ii) the frequency of examinations, (iii) the purpose of the treatment relationship, (iv) the extent of the treatment relationship, and (v) the examining relationship; (4) specialization; and (5) other factors. 20 C.F.R. § 404.1520c(a)-(c). The ALJ must explain how he or she considered supportability and consistency, which are the two most important factors to determine the persuasiveness of a medical opinion or a prior administrative medical finding. 20 C.F.R. § 404.1520c(b)(2). Generally, the ALJ may, but does not have to, explain how he or she considered the other factors. Id. But if the ALJ finds that two or more medical opinions or prior administrative medical findings about the same issue are equally well-supported and consistent with the record, but are not exactly the same, the ALJ must articulate how he or she considered the other remaining factors. 20 C.F.R. § 404.1520c(b)(3). The ALJ’s evaluation of the medical opinions must still be supported by substantial evidence, 13 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 14 of 19 Page ID #:927

which is a highly deferential standard. See Nunzio D. C. v. Kijakazi, 2021 WL 3849704, at *3 (C.D. Cal. Aug. 27, 2021); 82 Fed. Reg. at 5853 (explaining that courts have focused too much on whether ALJs sufficiently articulated the weight given to treating opinions rather than on “applying the substantial evidence standard of review, which is intended to be highly deferential to [the SSA]”). 1. The Opinion of Drs. Pingol and Khan Drs. Pingol and Khan cosigned a single opinion dated July 25, 2019. See AR at 786-88. They opined that plaintiff could lift and carry only less than ten pounds on an occasional or frequent basis, stand, walk, or sit only less than two hours during an eight-hour workday, and sit or stand for only 20 minutes before having to change positions. AR at 786. She would need to shift at will from sitting, standing, or walking, and would have to walk around five to ten minutes every 20 minutes. AR at 787. She would also need to lie down every 20 to 30 minutes during a work shift. Id. The doctors formulated these limitations based on her MRI of the lumbar spine showing lumbar stenosis and her reports of worsened pain with prolonged sitting, standing, or walking. Id. Drs. Pingol and Khan further opined that plaintiff could only occasionally twist, stoop, bend, crouch, climb stairs, or climb ladders. Id. She also has limited pushing and pulling abilities due to her back pain and lumbar stenosis. Id. The doctors concluded by opining that her impairments or treatment would cause her to be absent from work more than three times a month. AR at 788. 2. The ALJ’s Findings The ALJ began her discussion of Drs. Pingol’s and Khan’s opinion by explicitly finding it “less persuasive” than the other opinions of record. AR at 23. The ALJ then discussed the supportability and consistency factors outlined in the new regulations. Regarding supportability, the ALJ noted that Drs. Pingol and Khan 14 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 15 of 19 Page ID #:928

supported their opinion by citing to an MRI of plaintiff’s lumbar spine and her reports of back pain. Id. (citing AR at 787-88). As for consistency, the ALJ concluded that the opinion was not consistent with the record. Id. The ALJ reasoned that plaintiff’s physical examinations mostly showed she had normal strength, sensation, reflexes, range of motion, coordination, balance, and gait, all of which supported a restriction to light exertional work. Id. (citing AR at 305, 340, 355-58, 444, 483, 545, 572, 579, 586, 591, 603, 806). The ALJ also noted that despite her reports of significant pain, her providers rarely documented her showing more than mild distress. Id. (citing AR at 285, 305, 308, 340, 354, 380, 383, 386, 389, 391, 393, 395, 400, 482, 545, 558, 572, 579, 586, 591, 738, 753, 764, 791). Plaintiff counters that the opinion was indeed consistent with the record. She points to her April 2017 and November 2018 MRIs showing a 3mm broad- based disc bulge with narrowing of the left intervertebral foramen and 4mm right posterior paracentral disc protrusion at L5-S1. P. Mem. at 22 (citing AR at 321, 350). She also notes that Dr. Khan diagnosed her with L5-S1 stenosis and degenerative disc disease and recommended physical therapy. Id. (citing AR at 449-50). She also tried narcotics, muscle relaxants, an epidural steroid injection, a facet joint injection, and morphine injections. Id. (citing AR at 448, 518, 598). She ultimately underwent lumbar decompression surgery in mid-2019. See id. (citing AR at 444, 450). Plaintiff’s arguments are not persuasive. Plaintiff primarily challenges the ALJ’s findings on consistency. She does not argue that the ALJ failed to consider the evidence she presents. Indeed, the ALJ summarized evidence concerning all of her impairments in her decision (see AR at 18, 20-22) and weighed it against examinations that showed mostly normal strength, sensation, reflexes, range of motion, coordination, balance, and gait, as well as no evidence of more than mild 15 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 16 of 19 Page ID #:929

distress. See Seawood v. Berryhill, 2020 WL 1624377, at *11 (S.D. Cal. Apr. 2, 2020) (“The ALJ is to resolve conflicts in the record and assess the claimant’s functionability based on the record as a whole.” (citing Tommasetti, 533 F.3d at 1041)). Notably, plaintiff does not address the largely normal findings cited by the ALJ. As such, the ALJ provided substantial evidence to support her finding that the opinion was not consistent with the medical record. See Aukland, 257 F.3d at 1035 (holding that substantial evidence is more than a mere scintilla). The ALJ’s supportability discussion is not as strong. Defendant points out that while Drs. Pingol and Khan cited the MRI, they failed to cite any other objective findings or otherwise explain the basis for their assessed limitations. D. Mem. at 15. But that is not quite what the ALJ said. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the reasons the ALJ asserts.” (citations omitted)). The ALJ simply identified the one piece of evidence (an MRI) that Drs. Pingol and Khan relied on to support their opinion, and then referenced the evidence of normal examination results. See AR at 23. It is implicit in the ALJ’s analysis that the MRI cited in support was insufficient when juxtaposed with all the other evidence in the record cited by the ALJ, but the ALJ fails to explicitly explain “how [she] considered the supportability . . . factor[].” 20 C.F.R. § 404.1520c(b)(2). The new regulations instruct ALJs that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion[] . . . the more persuasive the medical opinion[].” 20 C.F.R. § 404.1520c(c)(1) (explanation of “supportability”). The ALJ here suggests why she found the MRI and reports of back pain to not be relevant enough to support the opinion, but does not clearly articulate her analysis. Although the ALJ’s explanation of her analysis is not ideal, to the extent this constituted error it was harmless. An ALJ’s error is harmless where such error is 16 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 17 of 19 Page ID #:930

inconsequential to the ultimate non-disability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Burch, 400 F.3d at 679 (“A decision of the ALJ will not be reversed for errors that are harmless.”). On remand, the ALJ would have to explain why she found the MRI and reports of back pain to be insufficient to support the opinion at issue. But as previously discussed, the ALJ did weigh that specific evidence against multiple objective records showing largely normal findings. Thus, the court is confident that remanding the matter for a more complete explanation of the supportability factor would not result in a different RFC or disability determination. See Shinseki v. Sanders, 556 U.S. 396, 409, 129 S. Ct. 1696, 173 L. Ed. 2d 532 (2009) (“[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination.”). Accordingly, the court finds the ALJ’s analysis of the opinion of Drs. Pingol and Khan does not warrant remand. C. The Court Rejects Plaintiff’s Vague Constitutional Challenge On September 8, 2021, more than two months after defendant filed its Memorandum, plaintiff filed a Notice of New Authority. In the Notice, she states that the U.S. Department of Justice’s Office of Legal Counsel issued an opinion on July 8, 2021 that casts significant doubt on the constitutionality of the appointment of the prior Commission of Social Security. Notice at 1. Plaintiff notes that she filed her claim for benefits on July 5, 2017, participated in a hearing on August 21, 2019, received the ALJ’s adverse decision on October 11, 2019,2 and was denied review by the Appeals Council on May 29, 2020. Id. at 2. She indicates that Andrew Saul held the office of Commissioner of Social Security as the sole person dischargeable only for cause between June 17, 2019 and July 11, 2021. Id. at 1-2. The court is puzzled by plaintiff’s filing, which does not explain whether she 2 The date of the ALJ’s decision is actually October 17, 2019. See AR at 25. 17 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page 18 of 19 Page ID #:931

is seeking any particular type of relief as a result of the alleged constitutional problem with the former Commissioner’s appointment. Plaintiff had never raised the issue prior to the filing of her Notice. To try to ascertain the nature of plaintiff’s argument, the court reviewed other social security cases in which plaintiff’s counsel also participated and raised the issue. From that it appears plaintiff intended to argue that the Commissioner’s final decision in this case arose from an unconstitutional administrative process. See, e.g., Dareth T. v. Kijakazi, 2022 WL 671540, at *2 (C.D. Cal. Mar. 7, 2022). Specifically, the allegedly unconstitutional removal provision rendered Saul’s tenure as Commissioner unconstitutional, which in turn tainted his delegation of authority to the assigned ALJ and the Appeals Council to consider and decide plaintiff’s case. See id. The court will not address each of the arguments plaintiff’s counsel presented in other cases but not here. The court finds only that it is not convinced plaintiff’s constitutional challenge warrants reversal here, for two reasons. First, the Ninth Circuit recently opined that “the possible invalidity of a restriction on the removal of an official does not render invalid the appointment of the official.” See Toni D. M. v. Kijakazi, 2022 WL 423494, at *2 (C.D. Cal. Jan. 5, 2022) (citing Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1137 (9th Cir. 2021)). Second, plaintiff has not even attempted to show any connection between the allegedly unconstitutional removal clause and the ALJ’s or Appeals Council’s decision denying her benefits. See id. at *3 (citing other cases on point); Dareth T., 2022 WL 671540, at *3 (same). Accordingly, the court rejects plaintiff’s incomplete constitutional challenge. // // 18 Case 8:20-cv-01354-SP Document 25 Filed 03/31/22 Page190f19 Page ID #:932

V. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. ey DATED: March 31, 2022 United States Magistrate Judge 19