Felicia Renee Noble v. Commissioner of Social Security

• Court: District Court, C.D. California
• Decided: March 29, 2022
• Docket: 5:20-cv-01471
• Status: Unknown

Opinion

Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 1 of 23 Page ID #:1295

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FELICIA N., ) Case No. 5:20-cv-01471-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) KILOLO KIJAKAZI, Acting ) 15 Commissioner of the Social Security ) Administration, ) 16 ) ) 17 Defendant. ) ) 18 19 20 I. 21 INTRODUCTION 22 On July 23, 2020, plaintiff Felicia N. filed a Complaint against defendant, 23 the Commissioner of the Social Security Administration (“Commissioner”), 24 seeking review of a denial of a period of disability, disability insurance benefits 25 (“DIB”), and supplemental security income (“SSI”). The parties have fully briefed 26 the issues in dispute, and the court deems the matter suitable for adjudication 27 without oral argument. 28 Plaintiff presents two disputed issues for decision: (1) whether the 1 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 2 of 23 Page ID #:1296

1 administrative law judge (“ALJ”) failed to properly consider the opinion of treating 2 physician Dr. Omid Zebarjadi; and (2) whether the ALJ erred in formulating 3 plaintiff’s residual functional capacity (“RFC”) by failing to incorporate the 4 opinion of consultative examiner Dr. Rashin D’Angelo and the ALJ’s own findings 5 regarding plaintiff’s mental impairments. Mem. in Supp. of Pl.’s Compl. (“P. 6 Mem.”) at 12-23; see Def.’s Mem. in Supp. of Answer (“D. Mem.”) at 4-11. 7 Having carefully studied the parties’ memoranda, the Administrative Record 8 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 9 the ALJ properly evaluated the Dr. Zebarjadi’s opinion, but failed to properly 10 consider plaintiff’s mental impairments in formulating the RFC. The court 11 therefore reverses the decision of the Commissioner denying benefits and remands 12 the matter for further administrative action consistent with this decision. 13 II. 14 FACTUAL AND PROCEDURAL BACKGROUND 15 Plaintiff, who was 36 years old on the alleged disability onset date, has a 16 tenth grade education. AR at 60, 320. She has past relevant work as a caregiver or 17 in-home health aide. AR at 51. 18 On July 20, 2016, plaintiff filed applications for a period of disability, DIB, 19 and SSI, alleging an onset date of January 1, 2009. AR at 60, 74. Plaintiff claimed 20 she suffered from a hip problem, sciatica, a herniated disk, scoliosis, a back 21 problem, high cholesterol, a neck problem, depression, and a heart murmur. See 22 AR at 61, 75. Plaintiff’s applications were initially denied on March 2, 2017. AR 23 at 124, 130. 24 Plaintiff requested a hearing, which the assigned ALJ held on July 11, 2019. 25 AR at 37. Plaintiff, represented by counsel, appeared and testified at the hearing. 26 AR at 41-50. The ALJ also heard testimony from Susan Moranda, a vocational 27 expert. AR at 50-57. The ALJ denied plaintiff’s claims on July 29, 2019. See AR 28 2 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 3 of 23 Page ID #:1297

1 at 17-29. 2 Applying the well-established five-step sequential evaluation process, the 3 ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity 4 since January 1, 2009, the alleged onset date. AR at 19. 5 At step two, the ALJ found plaintiff suffered from the following severe 6 impairments: cervical and lumbar spine degenerative disc disease with 7 radiculopathy; and bilateral hip osteoarthritis. Id. The ALJ also found plaintiff 8 suffered from the non-severe impairments of pneumonia/colitis, mild 9 emphysema/bullous disease, dyslipidemia, cardiomyopathy, chest pain, shortness 10 of breath, depression, and anxiety. See AR at 19-20. 11 At step three, the ALJ found plaintiff’s impairments, whether individually or 12 in combination, did not meet or medically equal one of the impairments set forth in 13 20 C.F.R. Part 404, Subpart P, Appendix 1. AR at 22. 14 The ALJ then assessed plaintiff’s RFC,1 and determined she had the ability 15 to perform: 16 sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) 17 except she requires the flexibility to alternate positions between sitting 18 and standing every 30 minutes; she can never crawl or climb ladders, 19 ropes, or scaffolds; she can occasionally climb ramps and stairs, 20 balance, stoop, kneel, and crouch; she can occasionally reach 21 overhead and frequently reach in all other directions; she can tolerate 22 occasional exposure to extreme cold, extreme heat, vibration, and 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 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 27 ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 3 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 4 of 23 Page ID #:1298

1 atmospheric conditions such as odors, dusts, gases, fumes, and poor 2 ventilation; she can tolerate no exposure to hazards such as 3 unprotected heights and moving mechanical machinery. 4 Id. 5 The ALJ found, at step four, that plaintiff was unable to perform any past 6 relevant work. AR at 27. 7 At step five, the ALJ considered the plaintiff’s age, education, work 8 experience, and RFC, and found plaintiff could perform jobs that exist in 9 significant numbers in the national economy, including charge account clerk, small 10 parts assembler, and general office assistant. See AR at 28-29. The ALJ therefore 11 concluded plaintiff was not under a disability, as defined in the Social Security 12 Act, at any time from January 1, 2009 through the date of his decision. AR at 29. 13 Plaintiff filed a timely request for review of the ALJ’s decision, but the 14 Appeals Council denied the request for review on May 20, 2020. AR at 1. 15 Accordingly, the ALJ’s decision became the final decision of the Commissioner. 16 III. 17 STANDARD OF REVIEW 18 This court is empowered to review decisions by the Commissioner to deny 19 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 20 Administration (“SSA”) must be upheld if they are free of legal error and 21 supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th 22 Cir. 2001) (as amended). But if the court determines the ALJ’s findings are based 23 on legal error or are not supported by substantial evidence in the record, the court 24 may reject the findings and set aside the decision to deny benefits. Aukland v. 25 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 26 1144, 1147 (9th Cir. 2001). 27 “Substantial evidence is more than a mere scintilla, but less than a 28 4 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 5 of 23 Page ID #:1299

1 preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial 2 evidence is such “relevant evidence which a reasonable person might accept as 3 adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 4 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether 5 substantial evidence supports the ALJ’s finding, the reviewing court must review 6 the administrative record as a whole, “weighing both the evidence that supports 7 and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 8 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific 9 quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (internal quotation 10 marks and citation omitted). If the evidence can reasonably support either 11 affirming or reversing the ALJ’s decision, the reviewing court “may not substitute 12 its judgment for that of the ALJ.” Id. (internal quotation marks and citation 13 omitted). 14 IV. 15 DISCUSSION 16 A. The ALJ Properly Discounted Dr. Zebarjadi’s Treating Opinion 17 Plaintiff’s first argument is that the ALJ improperly rejected her treating 18 physician’s opinion. P. Mem. at 12-19. Defendant concedes, and the ALJ 19 acknowledged, that Dr. Omid Zebarjadi had a treating relationship with plaintiff. 20 AR at 27; D. Mem. at 5. 21 1. Legal Standard 22 To determine whether a claimant has a medically determinable impairment, 23 the ALJ considers different types of evidence, including medical evidence. 20 24 C.F.R. §§ 404.1527(b), 416.927(b).2 The regulations distinguish among three 25 26 2 The SSA issued new regulations effective March 27, 2017. All regulations 27 cited in this section are effective for cases filed prior to March 27, 2017. See 20 28 C.F.R. §§ 404.1527(b), 416.927(b). 5 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 6 of 23 Page ID #:1300

1 types of physicians: (1) treating physicians; (2) examining physicians; and (3) non- 2 examining physicians. 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e); Lester v. 3 Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating 4 physician’s opinion carries more weight than an examining physician’s, and an 5 examining physician’s opinion carries more weight than a reviewing physician’s.” 6 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. 7 §§ 404.1527(c)(1)-(2), 416.027(c)(1)-(2). The opinion of the treating physician is 8 generally given the greatest weight because the treating physician is employed to 9 cure and has a greater opportunity to understand and observe a claimant. Smolen v. 10 Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 11 751 (9th Cir. 1989). 12 Nevertheless, the ALJ is not bound by the opinion of a treating physician. 13 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 14 ALJ must provide clear and convincing reasons for giving it less weight. Id. If the 15 treating physician’s opinion is contradicted by other opinions, the ALJ must 16 provide specific and legitimate reasons, supported by substantial evidence, for 17 rejecting it. Id. “The opinion of a non-examining physician cannot by itself 18 constitute substantial evidence that justifies the rejection of the opinion of . . . a 19 treating physician.” Lester, 81 F.3d at 831 (citations omitted). Additionally, the 20 opinions of a specialist about medical issues related to his or her area of expertise 21 are entitled to more weight than the opinions of a non-specialist. Smolen, 80 F.3d 22 at 1285. 23 2. Dr. Zebarjadi’s Treating Opinion 24 On August 28, 2017, Dr. Zebarjadi filled out a medical source statement 25 regarding plaintiff’s physical functional abilities. See AR at 588-89. In the form, 26 he diagnosed her with spinal stenosis and opined that her symptoms would often 27 interfere with the attention and concentration needed to perform simple work tasks. 28 6 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 7 of 23 Page ID #:1301

1 See AR at 588. He opined that in an eight-hour workday, she would have to 2 recline or lie down for longer than the amount of time that is usually given to 3 workers for breaks. See id. He also concluded that she could only walk one to two 4 city blocks without rest or significant pain, sit for three hours in an eight-hour 5 workday, and stand or walk for one hour in an eight-hour workday. See id. She 6 also would need to take five to six unscheduled breaks of about fifteen minutes 7 each during an eight-hour workday. See id. 8 Dr. Zebarjadi further opined that plaintiff could lift and carry less than ten 9 pounds frequently and ten pounds occasionally, but never twenty or more pounds 10 in a work situation. See id. He determined she has limitations with repetitive 11 reaching, handling, and fingering. Id. He opined that in an eight-hour workday, 12 she could use her right hand and fingers to grasp, turn, twist, or manipulate objects 13 only about 70 percent of the time, or 80 percent of the time with her left hand and 14 fingers. Id. Finally, he estimated that she would likely be absent from work more 15 than four times a month due to her impairments or treatments. AR at 589. 16 3. The ALJ’s Findings 17 The ALJ was not persuaded by Dr. Zebarjadi’s opinion and gave it little 18 weight. AR at 27. Plaintiff acknowledges that Dr. Zebarjadi’s opinion was 19 contradicted by the consultative opinions of the State agency medical consultants. 20 P. Mem. at 14-15. The State physicians reviewed plaintiff’s medical record and 21 determined that she was capable of performing a range of work at the light 22 exertional level. See AR at 26 (citing AR at 60-87, 90-119). The ALJ gave those 23 opinions partial weight because he determined that more restrictive exertional, 24 postural, reach, and environmental limitations were warranted. See id. 25 Because Dr. Zebarjadi’s opinion was contradicted by another doctor’s 26 opinion, the ALJ needed to provide specific and legitimate reasons, supported by 27 substantial evidence, to reject it. See Smolen, 80 F.3d at 1285. Here, the ALJ 28 7 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 8 of 23 Page ID #:1302

1 provided three separate reasons for discounting Dr. Zebarjadi’s opinion: First, the 2 ALJ found the checklist-style form appeared to have been completed as an 3 accommodation to plaintiff and did not explain the rationale for Dr. Zebarjadi’s 4 opinion. See AR at 27. Second, Dr. Zebarjadi’s opinion was inconsistent with his 5 own treatment notes. See id. Third, the extreme limitations assessed by Dr. 6 Zebarjadi contrasted sharply with the other evidence in the record, including 7 objective diagnostic findings. See id. 8 a. Lack of Supporting Clinical Findings 9 As a preliminary matter, the ALJ commented that Dr. Zebarjadi appeared to 10 have provided his opinion as an accommodation to plaintiff. AR at 27. To the 11 extent the ALJ held that against the opinion, that part of the ALJ’s reasoning was 12 devoid of substantial evidence. See Alicia B. v. Berryhill, 2019 WL 1081208, at *9 13 (C.D. Cal. Mar. 7, 2019) (“An ALJ may not reject a treating physician’s opinion 14 based on mere speculation concerning the basis for the physician’s opinion.” 15 (citing Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995))). 16 The ALJ also determined that the physical limitations assessed by Dr. 17 Zebarjadi were conclusions without any rationale or citation to medical records. 18 AR at 27. In particular, the ALJ noted that Dr. Zebarjadi’s own treatment notes 19 contained little to no evidence of clinical findings relating to plaintiff’s orthopedic 20 issues of her neck, back, and hips. See id. (citing AR at 705-811, 1006-15). 21 Plaintiff argues the ALJ impermissibly discounted Dr. Zebarjadi’s opinion 22 simply because it was on a check-the-box form. See P. Mem. at 14-15. She 23 contends that “Dr. Zebarjadi’s years of visits with Plaintiff obviously formed the 24 basis of his opinion on her limitations.” Id. at 14. She argues that Dr. Zebarjadi 25 also supported his opinion with reports from other specialists. See id. at 15. 26 Plaintiff’s contention is not supported by a single citation to the record. 27 Instead, defendant correctly points out that physical examinations from 28 8 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 9 of 23 Page ID #:1303

1 appointments with Dr. Zebarjadi did not include any muscoskeletal exams. See 2 AR at 711, 715, 719, 723, 727, 731, 735, 739, 743, 747, 751, 758, 760-61, 763-64, 3 766, 769, 778, 781, 784.3 Dr. Zebarjadi’s treatment notes from the day of his 4 opinion indicate that no muscoskeletal examination took place on that day either. 5 See AR at 751. 6 Plaintiff is correct that ALJs cannot reject check-the-form opinions simply 7 because of their format. “While an opinion cannot be rejected merely for being 8 expressed as answers to a check-the-box questionnaire, . . . the ALJ may 9 permissibly reject check-off reports that do not contain any explanation of the 10 bases of their conclusions . . . .” Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) 11 (cleaned up). Dr. Zebarjadi’s opinion lacked any explanation for his conclusions, 12 so it appears the ALJ could have discounted it solely for that reason. But the Ninth 13 Circuit has also said that ALJs may not reject treating opinions in check-the-box 14 format even if they are “not accompanied by comments, and did not indicate to the 15 ALJ the basis for the physician’s answers.” Trevizo v. Berryhill, 871 F.3d 664, 677 16 n.4 (9th Cir. 2017) (citation omitted). The court need not resolve this apparent 17 conflict because in this case the ALJ actually reviewed Dr. Zebarjadi’s treatment 18 notes before concluding that his opinion lacked objective medical support. See AR 19 at 27 (noting that the ALJ considered plaintiff’s longitudinal treatment history by 20 Dr. Zebarjadi). 21 For these reasons, the court concludes the ALJ properly found that Dr. 22 Zebarjadi’s opinion was brief, conclusory, and inadequately supported by clinical 23 findings. This was a specific and legitimate reason to discount the opinion. See 24 Ford, 950 F.3d at 1154 (“The ALJ need not accept the opinion of any physician, 25 26 3 Not all of the medical records cited by the ALJ and defendant are actually 27 from examinations conducted by Dr. Zebarjadi. See, e.g., AR at 753-55, 771-76, 28 786-800, 1006-15. 9 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 10 of 23 Page ID #:1304

1 including a treating physician, if that opinion is brief, conclusory, and inadequately 2 supported by clinical findings.” (cleaned up)); 20 C.F.R. § 404.1527(c)(3) (“The 3 more a medical source presents relevant evidence to support a medical opinion, 4 particularly medical signs and laboratory findings, the more weight we will give 5 that medical opinion.”). 6 b. Inconsistencies With Own Treatment Notes 7 The ALJ next noted that Dr. Zebarjadi’s opinion was contradicted by his 8 own treatment notes, which indicated that plaintiff’s pain was controlled with 9 medications. See AR at 27 (citing AR at 749). Indeed, in his treatment notes from 10 August 28, 2017, the same day of his opinion, Dr. Zebarjadi noted that “[p]ain is 11 controlled with current Rx regimen which reduces pain severity from 8/10 to 12 3/10.” AR at 749. 13 Plaintiff argues that Dr. Zebarjadi’s opinion is consistent with other pain 14 reports from before and after the date of the opinion. P. Mem. at 18. For instance, 15 throughout 2017, plaintiff reported high levels of pain (i.e., 6/10 up to 10/10). See 16 id. (citing AR at 951, 960, 963, 971, 974, 977, 980, 985, 990). The pain remained 17 at around 6/10 to 8/10 in 2018.4 See id. (citing AR at 902, 910, 912, 915, 919, 922, 18 935, 941). Based on this evidence, plaintiff argues the ALJ improperly cherry 19 picked an outlier to discount the opinion. See id. 20 Plaintiff’s argument is not convincing because the pain reports she cites 21 come from other providers’ treatment records, not Dr. Zebarjadi’s. There is a 22 difference between the consistency of a provider’s opinion with his or her own 23 treatment notes, and its consistency with the rest of the objective medical record. 24 That difference is particularly important where, as here, there is no evidence Dr. 25 Zebarjadi relied on other medical evidence to formulate his opinion. Plaintiff 26 27 4 Plaintiff’s claim is confusing because the record she cites actually contains 28 multiple reports that her pain was 10/10. See AR at 902, 912, 919. 10 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 11 of 23 Page ID #:1305

1 claims Dr. Zebarjadi did base his opinion in part on “the reports from specialists 2 which he referred Plaintiff to,” but she fails to cite any actual evidence of that. See 3 P. Mem. at 15. Plaintiff bears the initial burden of proving disability. Reddick, 4 157 F.3d at 721 (citations omitted). That includes the burden of supporting the 5 medical opinions she relies on to prove she is disabled. 6 In sum, there is no evidence that Dr. Zebarjadi considered any pain reports 7 other than those in his own treatment notes, which indicated that plaintiff’s pain 8 was controlled at a 3/10 with medication. Thus, the ALJ did not err in finding that 9 Dr. Zebarjadi’s treatment records of plaintiff’s pain reports contradict the extreme 10 physical limitations he assessed. This too was a specific and legitimate reason, 11 backed by substantial evidence, to discount Dr. Zebarjadi’s opinion. See Ghanim 12 v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (“A conflict between treatment 13 notes and a treating provider’s opinions may constitute an adequate reason to 14 discredit the opinions of a treating physician . . . .” (citations omitted)); Hurtado v. 15 Colvin, 2014 WL 4925225, at *3-4 (E.D. Cal. Sept. 29, 2014) (accepting ALJ’s 16 finding that treatment notes stating that plaintiff’s pain was stable with medication 17 contradicted the provider’s assessments of extreme limitations). 18 c. Inconsistency With the Objective Medical Record 19 The ALJ also concluded that Dr. Zebarjadi’s opinion was not supported by 20 the objective medical findings, which generally showed mild to moderate 21 degenerative changes of the lumbar spine and moderate changes of the cervical 22 spine. AR at 27. The ALJ noted that there was no evidence of more significant 23 findings such as nerve root encroachment that might support Dr. Zebarjadi’s highly 24 restrictive functional limitations. See id. 25 In describing the objective medical evidence, the ALJ began by recognizing 26 that plaintiff had degenerative changes in the cervical spine, lumbar spine, and 27 28 11 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 12 of 23 Page ID #:1306

1 hips.5 AR at 23-24. As far back as February 2012, an examination of plaintiff’s 2 cervical spine revealed loss of lordosis and mild degenerative spondylosis at C4- 3 C6, but was otherwise generally unremarkable. AR at 24 (citing AR at 861). 4 On June 5, 2015, an X-ray of plaintiff’s cervical spine showed no more than 5 mild degenerative changes. See id. (citing AR at 619). On June 26, she presented 6 to an emergency room, exhibiting tenderness to palpation at the right sciatic nerve, 7 but received only conservative medication treatment. See id. (citing AR at 439- 8 41). On October 28, 2015, she exhibited tenderness in the paraspinous muscles 9 and sacroiliac joints and positive facet loading, but no signs of numbness or 10 weakness in any extremity. See id. (citing AR at 494). Subsequent examinations 11 through January 7, 2016 resulted in similar findings. See id. (citing AR at 491-93). 12 During an examination on April 21, 2016, plaintiff showed tenderness in the 13 cervical paraspinous muscles, ambulated with an antalgic gait, and had limited 14 heel/toe walk. AR at 25 (citing AR at 602). Four days later, an X-ray of the 15 lumbar spine showed only mild multilevel disc disease at L1-S1. Id. (citing AR at 16 696). On May 11, an examination revealed plaintiff had an antalgic gait on the 17 right, left hip pain with internal rotation, and full range of motion. Id. (citing AR 18 at 404-07). An MRI of the lumbar spine from May 17 showed mild to moderate 19 bilateral facet disease at L5-S1 and mild levoscoliosis at L4-L5 with mild to 20 moderate bilateral facet disease resulting in mild to moderate bilateral neural 21 foraminal stenosis. See id. (citing AR at 467-68). An MRI of the left hip from 22 May 27 revealed a subchondral cyst along the anterosuperior border of the femoral 23 neck, but otherwise only bursitis and tendinitis. Id. (citing AR at 469). In June, an 24 examination showed plaintiff had antalgic gait, tenderness in her paraspinous 25 muscles, positive facet loading, and focal numbness and weakness in the 26 27 5 Among the records the ALJ cites are medical records belonging to a 28 different male individual. See AR at 24 (citing AR at 633-41). 12 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 13 of 23 Page ID #:1307

1 extremities. Id. (citing AR at 486). Examinations from October 20 and November 2 17 continued to show antalgic gait and tenderness in the lumbar spine area, but a 3 straight leg raise test was negative. Id. (citing AR at 481-82). 4 As far as 2017 medical evidence, the record shows plaintiff received an 5 epidural injection to the lumbar spine on February 21. See id. (citing AR at 517). 6 Two days later, at an orthopedic examination, she exhibited tenderness to palpation 7 in multiple areas including the bilateral L5 distribution. See id. (citing AR at 544). 8 Her range of motion was not full, and it was hindered secondary to pain. See id. 9 Her straight leg raise test was positive, and she showed slightly diminished motor 10 strength and sensation of the lower extremities. See id. These findings were also 11 noted during a March 20 examination. See id. (citing AR at 540-42). In April, a 12 diagnostic study of the bilateral hips for complaints of pain or evidence of 13 avascular necrosis came back normal. See id. (citing AR at 828). A May 14 examination revealed ongoing lumbar spine tenderness, diminished range of 15 motion, positive straight leg raise test, tight hamstrings, and slightly diminished 16 motor strength and sensation in the lower extremities. Id. (citing AR at 974-76). 17 A July 18, 2017 MRI of the cervical spine showed C5-C6 moderate left 18 neural foraminal osteogenic and less so discogenic stenosis with discogenic and 19 osteogenic impression on the left anterior spinal cord and moderate left 20 neuroforaminal stenosis. Id. (citing AR at 822-23). Other than that, the study 21 revealed only mild degenerative changes of the cervical spine and no other 22 evidence of stenosis or impingement. See id. Subsequent examinations through 23 October showed similar findings of lumbar tenderness, diminished range of 24 motion, diminished motor strength and sensation in lower extremities, and positive 25 straight leg raising. AR at 25-26 (citing AR at 960-70). In November, an MRI of 26 the bilateral hips showed only mild bilateral osteoarthritis, mild bilateral gluteus 27 minimus and medius and hamstring tendinosis, and trace edema in each 28 13 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 14 of 23 Page ID #:1308

1 trochanteric bursa. AR at 26 (citing AR at 662-63). At an examination in 2 December, she had active painful range of motion bilaterally with diminished 3 lower extremity strength and muscle tone. Id. (citing AR at 678-80). She also 4 exhibited lumbar spine tenderness and diminished range of motion. Id. 5 Regarding 2018 medical records, a February 21 MRI of plaintiff’s lumbar 6 spine showed posterior shallow disc herniation at L3-L4 and L4-L5, as well as 7 multilevel lateral recess stenosis due to multilevel facet joint arthritis. Id. (citing 8 AR at 813). She received a lumbar epidural injection in March. Id. (citing AR at 9 926). In April, an examination revealed tenderness to palpation in the back at the 10 midline and paraspinal area, diminished range of motion secondary to pain, 11 positive Spurling’s maneuver in the left upper extremity, and decreased sensation 12 to light touch in the left hand and multiple dermatomes. See id. (citing AR at 919- 13 21). Motor strength was 5/5 and straight leg raise test was negative. Id. 14 Additional examinations through June also showed spinal tenderness, diminished 15 range of motion, diminished sensation, and other evidence of radiculopathy. Id. 16 (citing AR at 912-18). She received another lumbar spine epidural injection in 17 September. Id. (citing AR at 910). Another examination in December showed 18 tenderness to palpation in multiple areas including the bilateral L5 distribution with 19 diminished range of motion, positive straight leg raising, tight hamstrings, and 20 slightly diminished lower extremity sensation and motor strength. Id. (citing AR at 21 902-03). Pain management examinations through April 2019 remained consistent 22 with these findings. Id. (citing AR at 1035-49). 23 Plaintiff argues that the ALJ failed to consider several pieces of evidence 24 that support stricter functional limitations in line with Dr. Zebarjadi’s opinion. 25 First, she contends the ALJ failed to mention that her February 2018 MRI showed 26 disc protrusion at L4-L5 causing severe bilateral recess stenosis. P. Mem. at 16 27 (citing AR at 26, 813). Indeed, while the ALJ recognized that the MRI showed 28 14 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 15 of 23 Page ID #:1309

1 multilevel lateral recess stenosis, he failed to consider the more specific finding of 2 severe bilateral recess stenosis at L4-L5. Other courts have found that ALJs err in 3 failing to consider findings of severe stenosis. See Vincent v. Heckler, 739 F.2d 4 1393, 1395 (9th Cir. 1984) (ALJ “must explain why significant probative evidence 5 has been rejected” (cleaned up)); Worsham v. Colvin, 2014 WL 2216092, at *2 6 (W.D. Wash. May 29, 2014) (finding that ALJ erred in failing to consider evidence 7 of severe tandem left neuroforaminal stenosis); cf. Demison v. Astrue, 2009 WL 8 1844478, at *3-5, 8 (C.D. Cal. June 25, 2009) (finding that ALJ erred by failing to 9 develop the record concerning plaintiff’s spinal stenosis). As such, the ALJ erred 10 in failing to consider this particular objective finding. 11 Second, plaintiff claims that the ALJ failed to consider consistent findings 12 from Dr. Anna Nikachina and other providers at a pain management clinic of 13 tenderness to palpation, positive straight leg raises, reduced sensation 14 corresponding to her L4-L5 stenosis, and diminished strength. P. Mem. at 16-17 15 (citing AR at 515, 520, 525, 547, 903, 906, 935, 939, 955, 960, 963, 1035, 1041). 16 But the ALJ did repeatedly discuss similar findings. See AR at 25-26 (citing AR at 17 540-42, 544, 678-80, 902-03, 912-21, 960-70, 974-76); Williams v. Colvin, 2015 18 WL 1408894, at *11 (N.D. Cal. Mar. 27, 2015) (finding that failure to specifically 19 discuss duplicative evidence was at most harmless error). 20 Third, plaintiff argues the ALJ failed to consider reports by surgical 21 consultant Dr. Jonathan Allen that plaintiff had difficulty transferring positions, 22 tenderness to palpation, reduced ranges of motion, and decreased sensation 23 throughout the hand. P. Mem. at 17 (citing AR at 913, 953). The records that 24 plaintiff cites, however, say nothing about difficulty transferring positions, 25 tenderness, or reduced ranges of motion. See AR at 913, 953. In any event, those 26 findings would also be duplicative of other evidence considered by the ALJ as 27 previously discussed. See supra; AR at 26, 919-21 (noting plaintiff’s decreased 28 15 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 16 of 23 Page ID #:1310

1 sensation to light touch in the left hand and multiple dermatomes). 2 Fourth, plaintiff argues the ALJ did not consider physical therapy notes from 3 April 2018, which revealed severely reduced hip strength, including 1-/5 hip 4 abduction, 3/5 hip adduction, 4-/5 hip flexion, 0/5 hip extension, a variety of 5 positive objective tests, reduced muscle tone, and moderately decreased ranges of 6 motion. P. Mem. at 17 (citing AR at 675). Further, the most recent physical 7 therapy consultation from April 2019 revealed similar reduced ranges of motion 8 and strength readings from 4-/5 to 4/5. P. Mem. at 17 (citing AR at 1046-47). The 9 ALJ did consider treatment records showing plaintiff had diminished range of 10 motion and muscle tone. See AR at 25-26 (citing AR at 544, 678-80, 902-03, 912- 11 21, 960-70, 974-76). But the physical therapy notes regarding her hip strength – 12 especially the low measurements of 1-/5 hip abduction, 3/5 hip adduction, and 0/5 13 hip extension – appear to be significantly probative, and the ALJ should have 14 explained whether or not that evidence affected the RFC. See Gooden v. Colvin, 15 2016 WL 6407367, at *7 (C.D. Cal. Oct. 28, 2016) (finding error where ALJ failed 16 to explicitly consider significance of physical therapy evidence implying some 17 physical work-related limitations); Williams v. Berryhill, 2019 WL 923749, at *12 18 (D. Nev. Feb. 1, 2019) (same). 19 In light of the ALJ’s failure to consider significantly probative evidence as 20 explained, the court finds that inconsistency with the objective medical record was 21 not a legitimate reason, backed by substantial evidence, to discount Dr. Zebarjadi’s 22 opinion. The ALJ’s error was harmless, however, because he provided two other 23 proper reasons to discount the opinion – lack of supportive clinical findings and 24 inconsistency with Dr. Zebarjadi’s own treatment notes. Accordingly, the court 25 finds that overall, the ALJ did not err in discounting Dr. Zebarjadi’s treating 26 opinion. Nonetheless, because the court is remanding the case on another ground 27 discussed below, on remand the ALJ should reconsider the objective medical 28 16 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 17 of 23 Page ID #:1311

1 evidence, taking into account the findings of severe stenosis and reduced hip 2 strength. 3 B. The ALJ Erred in Failing to Consider Plaintiff’s Mental Impairments 4 While Formulating the RFC 5 Plaintiff argues the ALJ erred by failing to include any limitations in the 6 RFC consistent with Dr. Rashin D’Angelo’s examining opinion and the ALJ’s own 7 findings of mental impairment at step two. See P. Mem. at 19-23. 8 At step two, the ALJ considered the four broad areas of mental functioning 9 outlined in the regulations for evaluating mental disorders and in the Listing of 10 Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. AR at 20. These four 11 areas are also known as the “paragraph B” criteria. Id. 12 The ALJ began his analysis by noting that plaintiff complained of a history 13 of depression and claimed she could not handle stress. Id. But the ALJ found no 14 evidence that she ever sought or received treatment from a mental health specialist. 15 Id. Instead, she received Xanax from her primary treating physicians, and she 16 reported the medication adequately managed her symptoms. Id. (citing AR at 705, 17 717). 18 The ALJ also considered the opinions of the State agency psychological 19 consultants, Drs. Mark Dilger and Nadine Genece, and the psychological 20 consultative examiner, Dr. D’Angelo. See AR at 20-21. On February 7, 2017, Dr. 21 D’Angelo, a psychological consultative examiner and licensed clinical 22 psychologist, evaluated plaintiff. AR at 20 (citing AR at 497-501). At the 23 examination, plaintiff complained of anxiety and depression. Id. (citing AR at 24 497-98). She exhibited several positive findings, including depressive mood, flat 25 affect, and slightly diminished delayed memory. Id. (citing AR at 499). She also 26 had problems with concentration, as she struggled slightly with serial sevens and 27 could not spell the word “world” backward. Id. Other findings were 28 17 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 18 of 23 Page ID #:1312

1 unremarkable; her psychomotor activity was within normal limits, she maintained 2 fair eye contact, was able to establish rapport with the examiner, exhibited no 3 abnormalities in thought processes or content, and had intact insight and judgment. 4 Id. (citing AR at 499-500). Dr. D’Angelo diagnosed her with depressive disorder 5 not otherwise specified and determined a global assessment of functioning 6 (“GAF”) score of 70, indicating mild symptoms or difficulty functioning. Id. 7 (citing AR at 500). He opined that she would have no more than mild limitations 8 in mental functioning. Id. (citing AR at 500-01). The ALJ noted that Drs. Dilger 9 and Genece also opined that plaintiff did not have a severe mental impairment and 10 had no more than mild mental limitations. See AR at 21 (citing AR at 60-87, 90- 11 119). 12 The ALJ gave these three psychological opinions great weight, finding they 13 were consistent with the record as a whole. Id. In particular, the ALJ found the 14 opinions were consistent with the medical evidence demonstrating that plaintiff’s 15 symptoms remained well-controlled and generally stable at no worse than a mild 16 level with appropriate conservative treatment, and the absence of more significant 17 positive objective psychiatric or psychological findings of mental impairment. See 18 id. 19 Based on this evidence, the ALJ determined that plaintiff had only mild 20 limitations in each of the four functional areas, which made her medically 21 determinable mental impairments of depression and anxiety non-severe. See AR at 22 20-21 (citing 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1)). The ALJ provided 23 specific reasons for his findings for each particular functional area separately. See 24 id. The ALJ also concluded that plaintiff’s medically determinable mental 25 impairments, considered individually and together, did not cause more than a 26 minimal limitation in the claimant’s ability to perform basic mental work activities. 27 AR at 20. 28 18 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 19 of 23 Page ID #:1313

1 Before concluding his analysis, the ALJ explained that the limitations 2 identified in the paragraph B criteria “are not a residual functional capacity 3 assessment but are used to rate the severity of mental impairments at steps 2 and 3 4 of the sequential evaluation process.” AR at 22. The ALJ noted that the mental 5 RFC assessment used at steps four and five requires a more detailed assessment. 6 Id. The ALJ ended by stating his RFC assessment reflected the degree of 7 limitation he found as a result of his paragraph B analysis. See id. 8 In Hutton v. Astrue, the Ninth Circuit considered whether the ALJ erred by 9 failing to include plaintiff’s post-traumatic stress disorder (“PTSD”) in his RFC 10 analysis and in his hypotheticals to the vocational expert. 491 Fed. Appx. 850, 850 11 (9th Cir. 2012). At step two, based on a medical opinion, the ALJ determined that 12 plaintiff had mild limitations in the area of concentration, persistence, or pace. Id. 13 Because the ALJ found no limitations with respect to other functional areas, he 14 classified plaintiff’s PTSD as non-severe. Id. In its analysis, the court first recited 15 the well-established principle that ALJs must consider even non-severe 16 impairments in formulating the claimant’s RFC. Id. (citing 20 C.F.R. 17 § 404.1545(a)(2)). The court found the ALJ failed to do so. Id. The court 18 explained that “[t]o determine [plaintiff’s] RFC properly, the ALJ was required to 19 consider [his] physical impairments and the ‘mild’ limitations his PTSD caused 20 with concentration, persistence, or pace.” See id. at 850-51. 21 Since Hutton, multiple courts have remanded social security cases due to the 22 ALJs’ failure to adequately address mild mental impairment limitations in 23 formulating RFCs. See Frary v. Comm’r of Soc. Sec., 2021 WL 5401495, at *10- 24 12 (E.D. Cal. Nov. 17, 2021) (compiling caselaw finding error based on Hutton). 25 In one such case, the court found error because the ALJ did not incorporate any 26 mild mental limitations in the RFC despite affording the objective medical 27 evidence of such limitations great weight. See Aida I. v. Saul, 2020 WL 434319, at 28 19 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 20 of 23 Page ID #:1314

1 *4-5 (S.D. Cal. Jan. 28, 2020). 2 Nevertheless, other courts have held that Hutton does not apply where the 3 ALJ included at least some analysis of the plaintiff’s mental impairments in his or 4 her RFC evaluation in conjunction with the express incorporation of the step two 5 findings. Frary, 2021 WL 5401495, at *17-19 (compiling cases that distinguished 6 Hutton); Sanguras v. Saul, 2021 WL 973940, at *5 (E.D. Cal. Mar. 16, 2021); 7 George A. v. Berryhill, 2019 WL 1875523, at *4-5 (C.D. Cal. Apr. 24, 2019). 8 Even a brief discussion of the evidence at the RFC stage will suffice, as long as it 9 is preceded by a more detailed discussion at step two. See Denney v. Saul, 2019 10 WL 4076717, at *7-8 (E.D. Cal. Aug. 29, 2019) (“The ALJ did not err in 11 addressing Plaintiff’s mental impairments in great detail at step two and briefly at 12 step four.”); Frary, 2021 WL 5401495, at *18 (same). But “a hollow boilerplate 13 incorporation of the paragraph B criteria within the RFC” discussion is not enough. 14 Frary, 2021 WL 5401495, at *19; Gates v. Berryhill, 2017 WL 2174401, at *2-3 15 (C.D. Cal. May 16, 2017) (“[T]he ‘consideration’ requirement is met if the ALJ 16 actually reviews the record and specifies reasons supported by substantial evidence 17 for not including the non-severe impairment. . . . It is not sufficient, however, for 18 the ALJ to merely rely on boilerplate language.” (cleaned up)). 19 Here, the ALJ carefully analyzed the evidence of plaintiff’s mental 20 impairments at step two, but then completely omitted any further analysis in 21 formulating the RFC. Relying on the oft-used boilerplate paragraph B language, 22 the ALJ recognized a more detailed assessment of the mental impairments is 23 needed in the RFC determination, but failed to deliver. A more explicit 24 explanation was all the more important here because the ALJ gave great weight to 25 the opinions of the psychological consultants, all of which found at least some mild 26 functional limitations. For instance, Dr. D’Angelo opined that plaintiff would have 27 mild limitations completing a normal workday or work week; accepting 28 20 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 21 of 23 Page ID #:1315

1 instructions from supervisors; interacting with coworkers and the public; and 2 handling usual stresses, changes, and demands of gainful employment. See AR at 3 500. As plaintiff points out, the vocational expert appeared to testify that even a 4 mild limitation completing a normal workday or work week may preclude 5 successful adjustment to other work. See AR at 57 (testifying that missing even 6 three days of work per month “would be a deal breaker, that is not tolerated by the 7 majority of employers in the competitive labor market”). And while a non-severe 8 impairment “standing alone may not significantly limit an individual’s ability to do 9 basic work activities, it may – when considered with limitations or restrictions due 10 to other impairments – be critical to the outcome of a claim.” Carmickle v. 11 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Social 12 Security Ruling 96-8p). 13 Defendant is correct that the regulations “do not require the ALJ to include 14 limitations in the RFC if the record supports a conclusion that the non-severe 15 impairment does not cause a significant limitation in the claimant’s ability to 16 work.” Koshak v. Berryhill, 2018 WL 4519936, at *8 (C.D. Cal. Sept. 19, 2018) 17 (citations omitted). But the ALJ must still show his work and explain why he 18 arrived at that conclusion. See id. (explaining that the ALJ must offer specific 19 reasons supported by substantial evidence for not including the non-severe 20 impairment in the RFC); Mellow v. Saul, 830 Fed. Appx. 882, 883 (9th Cir. 2020) 21 (finding that when the ALJ gives great weight to the opinion of a medical source, 22 the ALJ must explain his or her decision to not incorporate any assessed limitations 23 from that opinion into the RFC). 24 For these reasons, the court finds the ALJ erred in failing to explain, as part 25 of his RFC analysis, why he chose not to include any functional limitations related 26 to plaintiff’s mental impairments in the RFC. The court cannot determine whether 27 the outcome at step five would be the same had the ALJ avoided this error. See 28 21 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 22 of 23 Page ID #:1316

1 Aida I., 2020 WL 434319, at *4-5 (“[T]he Court cannot determine how the VE 2 would have testified had the specific mild functional limitations to which Dr. 3 Nicholson had opined been included in the hypotheticals posed.”). As such, the 4 court cannot say this error was harmless. 5 V. 6 REMAND IS APPROPRIATE 7 The decision whether to remand for further proceedings or reverse and 8 award benefits is within the discretion of the district court. McAllister v. Sullivan, 9 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 10 discretion to direct an immediate award of benefits where: “(1) the record has been 11 fully developed and further administrative proceedings would serve no useful 12 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 13 evidence, whether claimant testimony or medical opinions; and (3) if the 14 improperly discredited evidence were credited as true, the ALJ would be required 15 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 16 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 17 instructions to calculate and award benefits). But where there are outstanding 18 issues that must be resolved before a determination can be made, or it is not clear 19 from the record that the ALJ would be required to find a plaintiff disabled if all the 20 evidence were properly evaluated, remand for further proceedings is appropriate. 21 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 22 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 23 further proceedings when, even though all conditions of the credit-as-true rule are 24 satisfied, an evaluation of the record as a whole creates serious doubt that a 25 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 26 Here, remand is required because it is not clear whether plaintiff would be 27 found disabled if all the evidence were properly considered. On remand, the ALJ 28 22 Case 5:20-cv-01471-SP Document 24 Filed 03/29/22 Page 23 of 23 Page ID #:1317

1 || shall reconsider the medical evidence and opinions and reassess plaintiff's RFC, 2 || including assessing any warranted functional limitations relating to plaintiff's 3 || mental impairments or explaining the exclusion of any such limitations. The ALJ 4 || shall then proceed through steps four and five to determine what work, if any, 5 || plaintiff was capable of performing during the relevant period. 6 VI. 7 CONCLUSION 8 IT IS THEREFORE ORDERED that Judgment shall be entered 9 || REVERSING the decision of the Commissioner denying benefits, and 10 □□ REMANDING the matter to the Commissioner for further administrative action 11 } consistent with this decision. 12 PP 14 | DATED: March 29, 2022 SHERI PYM 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 23