Dlugos v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOYCE M. D.,1 Case No.: 3:22-cv-00318-BEN-DEB

12 Plaintiff, ORDER: (1) ADOPTING-IN-PART 13 v. REPORT AND RECOMMENDATION; and (2) 14 KILOLO KIJAKAZI, Acting REMANDING TO THE Commissioner of the Social Security 15 COMMISSIONER OF SOCIAL Administration, SECURITY 16 Defendant. 17 [Docket Nos. 14, 15, 16, and 19]

18 Plaintiff Joyce M. D. (“Plaintiff”) filed this action seeking judicial review of the 19 Social Security Commissioner’s (“Defendant”) denial of Supplemental Security Income 20 benefits. ECF No. 1. The parties filed cross-motions for summary judgment, and 21 Plaintiff replied. ECF Nos. 15, 16, 17. Magistrate Judge Daniel Butcher issued a Report 22 and Recommendation (“R&R”), which recommended this Court deny Plaintiff’s Motion 23 for Summary Judgment and Grant Defendant’s Motion for Summary Judgment, thereby 24 affirming the decision of the Commissioner. ECF No. 19. Specifically, the R&R found 25 26

27 1 Pursuant to Local Rule 7.1(e)(6)(b), this Order identifies the non-government party by 28 1 the Administrative Law Judge (“ALJ”) had sufficiently explained the consistency and 2 supportability factors when evaluating each medical provider’s opinion. 3 Plaintiff filed an Objection to the Report and Recommendation. ECF No. 20, 4 Objection to Report & Recommendation (“Obj.”). Defendant did not submit a Reply. 5 For the reasons that follow, the Court ADOPTS-IN-PART the Report and 6 Recommendation. 7 I. BACKGROUND 8 The Report and Recommendation (“R&R”) sufficiently details the pertinent 9 administrative record (“AR”) relevant to Plaintiff’s arguments. The Court will not repeat 10 it here but will note relevant facts as warranted in the Court’s analysis. 11 II. LEGAL STANDARDS 12 A district judge “may accept, reject, or modify the recommended disposition” of a 13 magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. 14 § 636(b)(1). “[T]he district judge must determine de novo any part of the [report and 15 recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). 16 However, “[t]he statute makes it clear that the district judge must review the magistrate 17 judge’s findings and recommendations de novo if objection is made, but not otherwise.” 18 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also 19 Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). “Neither the Constitution nor 20 the statute requires a district judge to review, de novo, findings and recommendations 21 that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at 1121. 22 “The Court must affirm the ALJ’s findings if the findings are supported by 23 substantial evidence and are free from reversible legal error.” Bayliss v. Barnhart, 427 24 F.3d 1211, 1214 (9th Cir. 2005). Substantial evidence is “such relevant evidence as a 25 reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 26 139 S. Ct. 1148, 1154 (2019) (citation omitted). The Court “must consider the entire 27 record as a whole and may not affirm simply by isolating a specific quantum of 28 supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (internal 1 quotation marks and citations omitted). 2 Relevant here, “[t]he agency must articulate…how persuasive it finds all of the 3 medical opinions from each doctor or other source, and explain how [it] considered the 4 supportability and consistency factors in reaching these findings.” Woods v. Kijakazi, 32 5 F.4th 785, 792 (9th Cir. 2022) (emphasis added) (internal citations and quotations 6 removed, cleaned up). The supportability factor requires a medical source to support the 7 opinion by explaining the “relevant objective medical evidence.” Id. at 791. The 8 consistency factor requires an ALJ to evaluate whether a medical opinion is 9 “consistent…with the evidence from other medical sources and nonmedical sources in 10 the claim.” Id. at 791-92. The ALJ is required to explain both the supportability and 11 consistency factors. See 20 C.F.R. § 416.920c(b)(2). 12 III. DISCUSSION 13 Plaintiff makes one objection to the R&R, arguing the ALJ’s discussion of four 14 medical opinions was legally insufficient. Obj. at 1. Plaintiff’s arguments reveal a 15 tension between the need to evaluate the record as a whole and the ALJ’s burden to 16 articulate the persuasiveness of each medical opinion. Although courts may look to the 17 record as a whole to verify support for an ALJ’s determinations, the ALJ must still 18 articulate its reasoning in a non-conclusory manner. Embrey v. Bowen, 849 F.2d 418, 19 421-22 (9th Cir. 1988). A court is required to review “the ALJ’s decision based on the 20 reasoning and factual findings offered by the ALJ[,]” not piece together support from the 21 record after the fact. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 22 2009). 23 “Even under the new regulations, an ALJ cannot reject an…opinion as 24 unsupported or inconsistent without providing an explanation. . . .” Woods, 2 F.4th at 25 791-92 (emphasis added); Cf. Ardoin v. Comm’r of Soc. Sec. Admin., No. CV-22-01358- 26 PHX-DJH, 2023 WL 6173215 at *9 (finding ALJ’s only offered reasoning 27 “contradictory” and therefore not supported by substantial evidence); Townsend v. 28 Comm’r of Soc. Sec. Admin., CV-21-08129-PCT-DWL, 2022 WL 3443678 at *3-7 (D. 1 Az. Aug. 17, 2022) (reviewing specific reasons ALJ articulated for finding medical 2 provider’s opinion unpersuasive). With this in mind, the Court turns to Plaintiff’s 3 arguments regarding the ALJ’s treatment of each medical provider. 4 1. Dr. Amado 5 On October 28, 2020, Dr. H. Amado (a state agency mental health consultant) 6 reviewed the record and offered opinions on Plaintiff’s mental functioning in four broad 7 categories known as “paragraph B criteria.” See Woods, 2 F.4th at 794. Dr. Amado 8 opined Plaintiff had moderate limitations across all four categories. AR 70-71. Dr. 9 Amado further opined despite these limitations, Plaintiff would be capable of accepting 10 supervision, getting along with prospective coworkers, and adapting to minimal changes 11 in a low stress work setting. Id. at 65-71. However, Dr. Amado opined Plaintiff should 12 have no more than incidental contact with the general public. The ALJ found this 13 opinion minimally persuasive with the following explanation: 14 “Although [the opinion] was supported… it was not consistent with the evidence as a whole as of or after the claimant’s prospective filing date. Dr. Amado placed 15 too much reliance on the history prior to the protective filing date. Specifically, a 16 longitudinal review of the claimant’s course of treatment and symptom complaints showed that her mental health conditions were largely related to her behavior and 17 interaction with others based on the status of her relationship with her children.” 18 AR 27-28. 19 Plaintiff argues that the ALJ’s findings for the consistency factor is legally 20 deficient because the relevant regulations require the ALJ to take consideration of a 21 claimant’s longitudinal psychiatric history.2 ECF No. 15, Plaintiff’s Motion for 22 Summary Judgment (“MSJ”) at 14. Compounding this issue, Plaintiff argues the ALJ 23 failed to specify which evidence in the longitudinal history was not probative of 24 Plaintiff’s functioning. Id. at 14-15. The R&R concludes the ALJ’s explanation is 25 26

27 2 See 20 C.F.R. 404, Subpt. P, App’x 1 § 12.00(C)(2)(b) and (C)(5); 20 CFR § 28 1 sufficient, citing to evidence in the record which generally supports the ALJ’s 2 determination. R&R at 6. 3 Although the R&R’s statement of the evidence on record is accurate, the Court 4 must also agree this is not the explanation the ALJ provided. Plaintiff (correctly) argues 5 in her Objection that “the ALJ never purported to find Dr. Amado’s opinion inconsistent 6 with Plaintiff’s daily activities, the opinion of any other mental health profession, nor 7 Plaintiff’s testimony[.]” Obj. at 3. The Court finds the ALJ’s explanation of the 8 consistency factor with respect to Dr. Amado insufficient and in error. 9 2. Dr. Katzman 10 On January 14, 2020, Plaintiff underwent a psychological evaluation performed by 11 Dr. Mara Katzman in relation to her on-going family law proceedings. AR 286-91. Dr. 12 Katzman obtained clinic observations and administered cognitive tests. Id. The ALJ 13 summarized the testing by stating, “Cognitive testing results showed that [Plaintiff] was 14 in the average range of cognitive functioning, but there was a discrepancy in scores and 15 she lacked successful performance in certain areas which was suggestive of anxiety 16 interfering with her performance.” Id. at 25. When evaluating Dr. Katzman’s opinion, 17 the ALJ noted “Dr. Katzman did not include functional limitations[,]” and found Dr. 18 Katzman’s opinion partially persuasive. Id. at 28. Regarding the consistency factor, the 19 ALJ noted, “the records as a whole, including individual therapy, was more consistent 20 with moderate limitations in the claimant’s ability to interact with others.” Id. 21 Plaintiff points to four errors in the ALJ’s treatment of Dr. Katzman’s report. First, 22 Plaintiff argues the ALJ erroneously concluded that Dr. Katzman’s report did not contain 23 functional limitations. MSJ at 22. The R&R also found that Dr. Katzman’s report did 24 not contain functional limitations, explaining, “Although Dr. Katzman evaluated aspects 25 of Plaintiff’s psychological functioning, she did not provide any functional limitation 26 ratings.” R&R at 7. After review of Dr. Katzman’s report, the Court agrees with the ALJ 27 and the R&R that Dr. Katzman did not provide any functional limitations. See AR 286- 28 91. Second, Plaintiff argues the ALJ failed to acknowledge or discuss Dr. Katzman’s 1 findings “at any point in his decision.” Obj. at 7. The R&R notes the ALJ cited to Dr. 2 Katzman’s report when explaining the medical opinions considered in determining 3 Plaintiff’s Residual Functional Capacity (“RFC”) relevant to the third category of 4 paragraph B criteria. R&R at 8 (citing AR 20-21). This is accurate. 5 Third, Plaintiff argues the ALJ inaccurately summarized and glossed over Dr. 6 Katzman’s findings by stating, “[c]ognitive testing results showed that [Plaintiff] was in 7 the average range of cognitive functioning[.]” Obj. at 7 (citing AR 25). However, 8 review of Dr. Katzman’s report reveals the ALJ’s summary almost verbatim mirrors Dr. 9 Katzman’s summary of her own findings. See AR 290 (“[Plaintiff] …. appeared to be 10 functioning in the average range of cognitive development.”) (emphasis added). The 11 Court cannot find the ALJ “glossed over” or grossly misstated Dr. Katzman’s test results 12 by summarizing them in Dr. Katzman’s own words. Combined with the ALJ’s citation to 13 Dr. Katzman’s report in his evaluation of the RFC, the Court cannot say this was in error. 14 The R&R reached the same conclusion. R&R at 8. 15 Finally, Plaintiff argues the ALJ’s discussion regarding the consistency factor is 16 legally deficient. The ALJ’s discussion of the consistency factor is limited to one-half of 17 a sentence, stating, “…the record as a whole, including individual therapy, was more 18 consistent with moderate limitations in the claimant’s ability to interact with others.” AR 19 28. The R&R concludes the ALJ’s discussion is sufficient, noting the ALJ found 20 consistencies between Dr. Katzman’s report and the mild limitations on which Drs. 21 Nicholson and Jacobs opined. R&R at 9. 22 Although the Court agrees that Dr. Katzman’s findings are generally consistent 23 with the opinions of Drs. Nicholson and Jacobs, the Court again notes this is not the 24 reasoning identified by the ALJ. The Court cannot conclude that identifying “the record 25 as a whole” is consistent with the ALJ’s own assessment of Plaintiff’s RFC and sufficient 26 to meet the ALJ’s burden to articulate the consistency factor. Accordingly, the Court 27 must agree with Plaintiff that the reasoning the ALJ provided was insufficient. 28 1 3. Dr. Nicholson 2 On October 21, 2020, Plaintiff attended a psychiatric consultant examination 3 performed by Dr. Gregory Nicholson.3 AR 444-49. The ALJ found Dr. Nicholson’s 4 opinion fully persuasive but indicated subsequent treatment records were “more 5 consistent” with the moderate limitation in the RFC concerning Plaintiff’s ability to 6 interact with others. AR 28. To support this, the ALJ cites to Plaintiff’s ongoing troubles 7 related to her relationship with her children. Id. Plaintiff argues this is another example 8 of the ALJ’s insufficient, cursory treatment of the consistency factor. MSJ at 20; Obj. at 9 9. The Court agrees with Plaintiff. 10 4. Dr. Jacobs 11 Dr. Uwe Jacobs reviewed the record on February 4, 2020. AR 83-87. Dr. Jacobs 12 opined that Plaintiff’s mental health conditions were non-severe, and Plaintiff had no 13 more than mild limitations with respect to paragraph B criteria. Id. In an almost identical 14 sentence to that used for Dr. Nicholson, the ALJ explained that “the record as a whole” 15 supported a moderate restriction in the paragraph B criteria of getting along with others, 16 citing again to Plaintiff’s ongoing troubles with her relationship with her children. Id. at 17 28. The reasoning provided being almost identical, this too is insufficient to meet the 18 ALJ’s articulation burden. 19 3. Harmless Error Analysis. 20 Although the Court has identified errors respecting the ALJ’s treatment of all four 21 medical providers, that is not the end of the inquiry. The Court must now evaluate 22 whether these errors were harmless. See Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 23 2020). An error can be considered harmless when it is “irrelevant to the ultimate 24 disability conclusion when considering the record as a whole.” Katherine T. v. Kijakazi, 25 No. 22-cv-00396-KSC, 2022 WL 17540791 at *6 (S.D. Cal. Dec. 8, 2022) (citation 26

27 3 As referenced in the R&R, the ALJ erroneously refers to Dr. Nicholson as “Dr. 28 1 omitted). Plaintiff argues the ALJ’s cursory explanation is prejudicial for all four 2 providers. Three out of the four providers made findings consistent with the ALJ’s 3 determination that Plaintiff suffered mild impairment in all but one paragraph B criteria. 4 The sole exception to this is Dr. Amado, who found moderate limitations across the 5 board. 6 Plaintiff argues a proper review of Dr. Amado’s decision could potentially lead to 7 a finding of disability because Dr. Amado had initially believed Plaintiff may meet or 8 equal Listing 12.08 for her personality disorder, which would require a finding of 9 disability as a matter of law at step three. See MSJ at 16. The Court notes this comment4 10 by Dr. Amado was made in June 2020, four months prior to Dr. Amado’s review of the 11 record and functional limitations opinion. After Dr. Amado made this statement, 12 additional medical records were received, as well as commentary on Plaintiff’s ADLs, 13 which Dr. Amado incorporated into his assessment. AR 66-67. 14 Similarly, Plaintiff argues the specific deficiencies Dr. Katzman noted in the test 15 results are relevant to, and could potentially modify, Plaintiff’s RFC. MSJ at 20; Obj. at 16 6. Plaintiff specifically points to test results in the areas of cognition where Plaintiff 17 scored in the low average range, as well as scores below or just below average. See AR 18 288-90. Despite finding Plaintiff scored below average in certain areas, the only truly 19 notable deficit was a “great difficulty in being creative or innovative.” AR 289. 20 Additionally, Dr. Katzman’s report contains almost equal test findings where Plaintiff 21 scored very well or had notable abilities. See id. at 288-89 (“[Plaintiff’s] highest scores 22 were in the areas of vocabulary, comprehension and similarities suggestive of excellent 23

24 25 4 Dr. Amado stated, in relevant part: “Evidence on file is strongly evocative of a cluster-B personality disorder, although this diagnosis has not been the focus of treatment as-such. 26 Do not think we have quite sufficient information for an allowance at this time, although 27 at your discretion we could certainly ‘PD’ the claim while completing adjudication . . . . Would also emphasize importance of functional forms if we are to consider an allowance 28 1 ability to benefit from learning activities, excellent ability to use common sense and make 2 good judgments and very good ability to think in the abstract.”). 3 Plaintiff argues much the same for Dr. Nicholson,5 who opined that Plaintiff would 4 be “mildly limited” in her ability to perform work activities without special or additional 5 supervision, as well as her ability to maintain regular attendance. AR 448-49. Plaintiff 6 notes even mild limitations in the ability to maintain regular attendance could be work 7 preclusive. Obj. at 10; see also AR 51 (vocational expert indicating more than three 8 absences a month would be work preclusive). Although Plaintiff points to Dr. 9 Nicholson’s notation of limitations regarding the need for supervision and maintaining 10 work attendance, Dr. Nicholson still only opined mild limitations across the board, also 11 noting that “claimant’s condition is expected to improve in the next twelve months with 12 active treatment.” AR 448. 13 Here, the Court must thread the tension noted at the beginning of this Order: the 14 Court must look to the record as a whole when determining whether the ALJ’s decision is 15 supported by substantial evidence, but the Court is also constrained to the reasons set 16 forth by the ALJ. In this case, the explanations of these reasons are woefully inadequate. 17 This is especially apparent given the contradictory reasoning provided with respect to 18 Drs. Amado, Nicholson and Jacobs. While the ALJ discounted Dr. Amado’s opinion due 19 to overreliance on the longitudinal history because it was “based on the status of her 20 relationship with her children[,]” the ALJ goes on justify deviations from the opinion of 21 other medical sources due to ongoing difficulties evidenced by Plaintiff’s issues with her 22 children. See AR 28. This is essentially the ALJ admitting such evidence is probative to 23 the ultimate decision but inexplicably using the same to discount Dr. Amado’s opinion. 24 Unfortunately, this is the only explanation the ALJ points to for the consistency factor for 25 all three doctors. 26 27 28 5 1 Ultimately, the Court cannot fairly say the ALJ’s errors were harmless. Despite 2 support in the record for the ALJ’s conclusions, the ALJ failed to articulate the 3 || consistency factor for every single mental health medical source it assessed on the record. 4 ||See AR 25-28. This assessment aligns with other district courts. See Gurule v. Comm’r 5 |lof Soc. Sec. Admin., No. CV-21-01651-PHX-DGC, 2022 WL 3025747 at *5-6 (D. Az. 6 || Aug. 1, 2022) (ALJ’s conclusory language and lack of discussion of consistency factor 7 || warranted remand) and Ardoin, 2022 WL 6173215 at *9 (finding ALJ’s sole reason for 8 || discounting medical opinion contradictory and therefore not supported by substantial 9 || evidence). 10 Here, the Court is mindful it cannot piece together “post hoc rationalizations” for 11 ||the ALJ’s finding. Bray, 554 F.3d at 1225. Noted above, the record reflects evidence 12 || which could be weighed either direction, including supporting the ALJ’s determination. 13 || But it is not the Court’s role to substitute its own judgment (or reasoning) for the ALJ’s 14 ||judgment and reasoning. Here, the Court cannot “confidently conclude that no 15 ||reasonable ALJ, when fully crediting the [evidence], could have reached a different 16 disability determination[,]” Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1056 17 || (9th Cir. 2006), because it cannot properly discern the ALJ’s reasoning at all. 18 IV. CONCLUSION 19 The Report and Recommendation is ADOPTED-IN-PART. The Court GRANTS 20 Plaintiff's Motion for Summary Judgment and DENIES Defendant’s Motion for 21 ||Summary Judgment. The case is REMANDED to the Commissioner of Social Security 22 || for further proceedings consistent with this Order. The Court further directs that 23 || Judgment be entered for Plaintiff in this matter. 24 IT IS SO ORDERED. 25 ° 26 || DATED: September 28, 2023 iT ROGER T. BENITE United States District Judge 28