Gordon v. O'Malley

• Court: District Court, N.D. California
• Decided: October 15, 2024
• Docket: 4:23-cv-02795
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MELISSA NICOLE GORDON, 7 Case No. 23-cv-02795-DMR Plaintiff, 8 v. ORDER ON CROSS MOTIONS FOR 9 SUMMARY JUDGMENT SSA (INTERESTED PARTY / NEF), et al., 10 Re: Dkt. Nos. 19, 25 Defendants. 11

12 Plaintiff Melissa G. moves for summary judgment to reverse the Commissioner of the 13 Social Security Administration’s (the “Commissioner’s”) final administrative decision, which 14 found Plaintiff not disabled and therefore denied her application for benefits under Titles II and 15 XVI of the Social Security Act, 42 U.S.C. § 401 et seq. The Commissioner cross-moves to affirm. 16 For the reasons stated below, the court grants Plaintiff’s summary judgment motion and denies the 17 Commissioner’s cross-motion. 18 I. PROCEDURAL HISTORY 19 Plaintiff filed an application for Social Security Disability Insurance (“SSDI”) and 20 Supplemental Security Income (“SSI”) benefits on January 3, 2020, alleging disability beginning 21 January 20, 2020. Administrative Record (“AR”) 256-270. The application was initially denied 22 on September 24, 2020 and again on reconsideration on February 1, 2021. An Administrative 23 Law Judge (“ALJ”) held a telephonic hearing on April 7, 2022 and issued an unfavorable decision 24 on May 2, 2022. AR 15-28. The ALJ determined that Plaintiff has the following severe 25 impairments: benign brain tumor, migraine headaches, major depressive disorder, and generalized 26 anxiety disorder. AR 18. The ALJ found that Plaintiff did not have an impairment or combination 27 of impairments that meets or medically equals the severity of one of the listed impairments in 20 1 following residual functional capacity (“RFC”):

2 [She can] perform medium work as defined in 20 CFR [§] 404.1567(c) and 416.967(c) except she can never climb ladders, 3 ropes, or scaffolds; the claimant can frequently climb ramps and/or stairs, balance, stoop, kneel, crouch, and/or crawl; she should avoid 4 all exposure to unprotected heights and avoid concentrated exposure to dangerous moving machinery (for example, factory-type 5 machinery with an unshielded blade); the claimant should avoid concentrated exposure to extremely bright lighting, for example, 6 lighting with the intensity level of bright theater spotlight or a brightly lit football stadium; she can work in an environment with a moderate 7 noise level (for example, somewhere with the noise intensity level of a business office, grocery store, department store, or somewhere with 8 light traffic noise); the claimant can perform simple, routine tasks and make simple work-related decisions with no fast-paced production 9 work, that is, no hourly quotas; she can tolerate brief and intermittent interaction with the general public; the claimant can tolerate 10 occasional interaction with co-workers but cannot perform tandem tasks; and she can tolerate occasional interaction with supervisors. 11 AR 20-21. 12 Relying on the opinion of a vocational expert (“V.E.”) who testified that an individual with 13 such an RFC could perform other jobs existing in the economy, including laundry worker, linen 14 room attendant, routing clerk, folding machine operator, final assembler, and document preparer, 15 the ALJ concluded that Plaintiff is not disabled. 16 After the Appeals Council denied review, Plaintiff sought review in this court pursuant to 17 42 U.S.C. § 405(g). [Docket No. 1.] 18 II. ISSUES FOR REVIEW 19 1. Did the ALJ fail to consider Plaintiff’s headache disorder under listing 11.02? 20 2. Did the ALJ err in its credibility determination? 21 22 3. Did the ALJ improperly weigh the medical opinions? 23 III. STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this court has the authority to review a decision by the 24 Commissioner denying a claimant disability benefits. “This court may set aside the 25 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 26 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 27 1 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 2 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a 3 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 4 When performing this analysis, the court must “consider the entire record as a whole and may not 5 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. 6 Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation and quotation marks omitted). 7 If the evidence reasonably could support two conclusions, the court “may not substitute its 8 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 9 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s 10 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 11 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 12 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 13 IV. DISCUSSION 14 A. The ALJ’s Listing Analysis 15 Plaintiff argues that the ALJ erred in determining that Plaintiff’s impairments are not of a 16 severity to meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, 17 Subpart P, Appendix 1. Specifically, Plaintiff argues that the ALJ improperly applied Social 18 Security Ruling (SSR) 19-4p. See Soc. Sec. Ruling, SSR 19-4p; Titles II & XVI: Evaluating Cases 19 Involving Primary Headache Disorders, SSR 19-4P, 2019 WL 4169635 (S.S.A. Aug. 26, 2019). 20 1. Legal Standard 21 The Listing of Impairments describes specific impairments “which are considered severe 22 enough to prevent a person from doing any gainful activity.” See 20 C.F.R. § 404.1525. If a 23 claimant meets or equals a listed impairment, she will be found disabled without further inquiry. 24 See 20 C.F.R. § 404.1520(d). The plaintiff “bears the burden of proving that . . . she has an 25 impairment that meets or equals the criteria of an impairment listed in Appendix 1 of the 26 Commissioner’s regulations.” Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). “To equal a 27 listed impairment, a claimant must establish symptoms, signs and laboratory findings ‘at least 1 claimant’s impairment is not listed, then to the listed impairment ‘most like’ the claimant’s 2 impairment.” Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (emphasis in original); 20 3 C.F.R. § 404.1526. 4 Migraines are not a listed impairment. However, SSR 19-4p states that “a person with a 5 primary headache disorder may exhibit equivalent signs and limitations to those detailed in listing 6 11.02 (paragraph B or D for dyscognitive seizures).” 2019 WL 4169635, *7. To evaluate whether 7 a primary headache disorder is equal in severity and duration to Listing 11.02B, the ALJ should 8 consider:

9 a detailed description from an AMS of a typical headache event, including all associated phenomena (for example, premonitory 10 symptoms, aura, duration, intensity, and accompanying symptoms); the frequency of headache events; adherence to prescribed treatment; 11 side effects of treatment (for example, many medications used for treating a primary headache disorder can produce drowsiness, 12 confusion, or inattention); and limitations in functioning that may be associated with the primary headache disorder or effects of its 13 treatment, such as interference with activity during the day (for example, the need for a darkened and quiet room, having to lie down 14 without moving, a sleep disturbance that affects daytime activities, or other related needs and limitations). 15 Id. The evaluation for Listing 11.02D considers the same factors, but also includes “whether the 16 overall effects of the primary headache disorder on functioning results in marked limitation in: 17 physical functioning; understanding, remembering, or applying information; interacting with 18 others; concentrating, persisting, or maintaining pace; or adapting or managing oneself.” Id. 19 2. Analysis 20 The ALJ’s application of SSR 19-4p is not a model of clarity. First, the ALJ found without 21 elaboration that Plaintiff’s migraine headaches are a medically determinable impairment which 22 significantly limits her ability to perform basic work activities. AR 18. Then, the ALJ found that 23 Plaintiff does not have an impairment which meets or medically equals the severity of a listed 24 impairment; but the ALJ did not consider Listing 11.02 or SSR 19-4p in the analysis at all. AR 25 18-20. And then, in the middle of evaluating Plaintiff’s credibility and residual functional 26 capacity, the ALJ finally turned to SSR 19-4p. AR 22-24. However, the ALJ applied the factors 27 used to determine if a primary headache disorder is a medically determinable impairment (a 1 diagnosis from an acceptable medical source; a third-party observation of a typical headache 2 event; laboratory test findings; and responses to treatment). AR 22-23; see SSR 19-4p, 2019 WL 3 4169635, *6. The ALJ did not explicitly consider whether Plaintiff’s migraines may be medically 4 equivalent to Listing 11.02 under the SSR 19-4p factors. 5 “It is unnecessary to require the Secretary, as a matter of law, to state why a claimant failed 6 to satisfy every different section of the listing of impairments.” Gonzalez v. Sullivan, 914 F.2d 7 1197, 1201 (9th Cir. 1990). The ALJ only has to make an “adequate statement of the ‘foundations 8 on which the ultimate factual conclusions are based.’” Id. However, when the “Court simply 9 cannot determine from the ALJ’s opinion how” the ALJ made the listing determination, the 10 “ALJ’s recitation of the evidence does not provide an adequate foundation for” the ALJ’s finding 11 that the listing was not met. Santiago v. Barnhart, 278 F. Supp. 2d. 1049, 1058 (N.D. Cal. 2003). 12 Out of an abundance of caution, the court interprets the ALJ’s application of SSR 19-4p as an 13 analysis of whether Plaintiff’s headache condition medically equals Listing 11.02. 14 Here, the ALJ states generally that the records “do not reflect that alternative causes [for 15 Plaintiff’s headaches] were considered and ruled out”; that the record “does not contain 16 documentation of a typical headache event” from an acceptable medical source or third-party 17 observer; that the record “contains no laboratory test findings”; and that Plaintiff “tried multiple 18 medications, but has not tried Botox, anticonvulsants and/or antidepressants.” AR 23. This is not 19 an adequate foundation for a finding that Plaintiff’s condition does not medically equal Listing 20 11.02. The ALJ did not accurately describe the record in stating that alternative causes were not 21 considered and that there were no laboratory test findings. On January 7, 2020, Plaintiff had an 22 MRI to evaluate whether Plaintiff’s migraines were caused by a recurrence of her benign brain 23 tumor. AR 436. The neurologist who analyzed the MRI determined that the migraines were 24 likely not caused by a recurrence and were instead “probably muscle contraction in nature 25 associated with cervicalgia.” AR 435. The neurologist then referred Plaintiff to a psychiatrist for 26 treatment of anxiety and depression. Id. The record thus clearly indicates that laboratory tests 27 1 were made, and an alternative cause (Plaintiff’s brain tumor) was considered and ruled out.1 To 2 the extent that the ALJ sought an explicit laboratory test finding that Plaintiff experiences 3 migraines, such a test does not exist. See Spiteri v. Colvin, Case No. 3:16-cv-01937-LB, 2016 WL 4 7425924, at *11 (N.D. Cal. Dec. 23, 2016) (“there is no test for migraine headaches”). 5 The ALJ also erred in considering that Plaintiff has not tried Botox or anticonvulsants for 6 her migraines. Plaintiff was never prescribed Botox or anticonvulsants, and there is no record that 7 a doctor ever recommended these treatments to her. SSR 19-4p states: “Medications and other 8 medical interventions are generally tailored to a person’s unique symptoms, predicted response, 9 and risk of side effects.” Therefore, the ALJ should simply consider “whether the person’s 10 headache symptoms have improved, worsened, or remained stable despite treatment,” and whether 11 the treatment causes any side effects. See SSR 19-4p. The regulation never states that the ALJ 12 should consider whether Plaintiff has tried all possible treatments in a one-size-fits-all scenario.2 13 The court finds that the ALJ erred in its analysis of Listing 11.02. On remand, the ALJ 14 should follow the guidance of SSR 19-4p in assessing whether Plaintiff’s condition medically 15 equals a listing. 16 B. The ALJ’s Credibility Determination 17 Plaintiff argues that the ALJ failed to provide specific, clear or convincing reasons for 18 rejecting Plaintiff’s testimony regarding subjective pain or symptoms. 19 1. Legal Standard 20 In general, credibility determinations are the province of the ALJ. “It is the ALJ’s role to 21 resolve evidentiary conflicts. If there is more than one rational interpretation of the evidence, the 22 ALJ’s conclusion must be upheld.” Allen v. Sec’y of Health & Human Servs., 726 F.2d 1470, 23 1473 (9th Cir. 1984) (citations omitted). An ALJ is not “required to believe every allegation of 24 disabling pain” or other nonexertional impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th 25 1 In fact, SSR 19-4p explicitly states that “physicians may use magnetic resonance imaging (MRI) 26 to rule out other possible causes of headaches—such as a tumor—meaning that an unremarkable MRI is consistent with a primary headache disorder diagnosis.” 2019 WL 4169635, *4. 27 1 Cir.1989) (citing 42 U.S.C. § 423(d)(5)(A)). However, if an ALJ discredits a claimant’s 2 subjective symptom testimony, the ALJ must articulate specific reasons for doing so. Greger v. 3 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). In evaluating a claimant’s credibility, the ALJ 4 cannot rely on general findings, but “must specifically identify what testimony is credible and 5 what evidence undermines the claimant’s complaints.” Id. at 972 (quotations omitted); see also 6 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (stating that an ALJ must articulate 7 reasons that are “sufficiently specific to permit the court to conclude that the ALJ did not 8 arbitrarily discredit claimant’s testimony”). The ALJ may consider “ordinary techniques of 9 credibility evaluation,” including the claimant’s reputation for truthfulness and inconsistencies in 10 testimony, and may also consider a claimant’s daily activities, and “unexplained or inadequately 11 explained failure to seek treatment or to follow a prescribed course of treatment.” Smolen v. 12 Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 13 The determination of whether or not to accept a claimant’s testimony regarding subjective 14 symptoms requires a two-step analysis. 20 C.F.R. § 404.1529; Smolen, 80 F.3d at 1281 (citations 15 omitted). First, the ALJ must determine whether or not there is a medically determinable 16 impairment that reasonably could be expected to cause the claimant’s symptoms. 20 C.F.R. § 17 404.1529(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces medical evidence of an 18 underlying impairment, the ALJ may not discredit the claimant’s testimony as to the severity of 19 symptoms “based solely on a lack of objective medical evidence to fully corroborate the alleged 20 severity of” the symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc) 21 (citation omitted). Absent affirmative evidence that the claimant is malingering, the ALJ must 22 provide “specific, clear and convincing” reasons for rejecting the claimant’s testimony. Vasquez 23 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The Ninth Circuit has reaffirmed the “specific, clear 24 and convincing” standard applicable to review of an ALJ’s decision to reject a claimant’s 25 testimony. See Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014). 26 2. Analysis 27 The ALJ found that Plaintiff’s “medically determinable impairment could reasonably be 1 persistence and limiting effects of these symptoms are not entirely consistent with the medical 2 evidence and other evidence in the record for the reasons explained in this decision.” AR 21. As 3 the ALJ determined that Plaintiff was not malingering, the ALJ must provide “specific, clear and 4 convincing” reasons for rejecting the claimant’s testimony. “This requires the ALJ to ‘specifically 5 identify the testimony [from a claimant] she or he finds not to be credible and . . . explain what 6 evidence undermines that testimony.’” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) 7 (quoting Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)). “[T]he 8 ‘clear and convincing’ standard requires an ALJ to show his work.” Smartt v. Kijakazi, 53 F.4th 9 489, 499 (9th Cir. 2022). The ALJ failed to do so here. 10 First, the ALJ generally reviewed the medical records and found that they did not 11 corroborate the level of functional limitation alleged by Plaintiff. AR 22. The Ninth Circuit has 12 repeatedly held that the ALJ “cannot rely on an absence of positive medical evidence to discredit a 13 claimant’s subjective symptom testimony.” Ferguson v. O’Malley, 95 F.4th 1194, 1201 (9th Cir. 14 2024) (emphasis in original). “Although an ALJ may use ‘inconsistent objective medical evidence 15 in the record to discount subjective symptom testimony,’ the ALJ ‘cannot effectively render a 16 claimant’s subjective symptom testimony superfluous by demanding positive objective medical 17 evidence fully corroborating every allegation within the subjective testimony.’” Id. at 1200 (citing 18 Smartt, 53 F.4th at 498). Here, the ALJ appeared to conflate the credibility analysis with the SSR 19 19-4p analysis and emphasized the lack of medical records corroborating Plaintiff’s reports of her 20 symptoms. AR 22-23. Not only did the ALJ’s SSR 19-4p analysis inaccurately describe the 21 record, as discussed above; it was also improper to include SSR 19-4p as part of the credibility 22 analysis under Ferguson. In addition, “non-specific conclusions that [the claimant’s] testimony 23 was inconsistent with her medical treatment” along with a general overview of the claimant’s 24 medical history do not constitute specific, clear, and convincing reasons. Lambert, 980 F.3d at 25 1277. Here, the ALJ summarized Plaintiff’s medical records related to her major depressive 26 disorder and generalized anxiety disorder, and then included boilerplate language that her 27 allegations concerning the severity of her mental health impairments were not corroborated by the 1 credible and why” with regards to her mental health impairments. Lambert, 980 F.3d at 1277 2 (quoting Treichler, 775 F.3d at 1103). The ALJ’s overview of Plaintiff’s medical record was not 3 clear and convincing. 4 Second, the ALJ found that Plaintiff’s testimony of the frequency and severity of her 5 migraines was inconsistent with medical records indicating that her migraines had improved. AR 6 23. Progress notes from January 18, 2022 stated that Plaintiff had a chronic headache, but that it 7 was “gradually improving (stable on meds).” AR 887. The notes also indicated that Plaintiff is 8 taking Naprosyn and Nortriptyline for her migraines, and that “[p]retty much her migraines ar [sic] 9 under control with same.” AR 888. Progress notes from March 1, 2022 stated that Plaintiff was 10 negative for “dizziness and headaches.” AR 875. At the administrative hearing, Plaintiff testified 11 that she did not tell her doctor in January 2022 that her migraines were “pretty well controlled,” 12 but only told her doctor that she was not going to try different medications for her migraines. AR 13 58. The ALJ reasoned that if the migraines were “as severe as [Plaintiff] testifies, new treatment 14 options would seem to be most welcome to address her allegedly debilitating pain,” and so 15 determined that Plaintiff’s descriptions of her symptoms were not credible. AR 25. 16 The ALJ’s reasoning was not clear and convincing. The ALJ did not explain how the 17 January 2022 progress note stating that Plaintiff’s migraines were “gradually improving” and 18 “stable” contradicts Plaintiff’s testimony that her medication helps to reduce the severity and 19 frequency of the migraines, but does not prevent them entirely. AR 55-56, AR 887. Under Ninth 20 Circuit law, “[i]mpairments that can be controlled effectively by medication are not disabling for 21 the purpose of determining eligibility” for benefits. Warre v. Comm’r of Soc. Sec. Admin., 439 22 F.3d 1001, 1006 (9th Cir. 2006). A claimant is not disabled if the “severity of the problem had 23 decreased sufficiently to enable [her] to engage in gainful activity.” Id. But the progress note 24 does not specify, and nowhere else in the record does it indicate, that Plaintiff’s migraines were 25 effectively controlled by the medication such that she would be able to “engage in gainful 26 activity.” See id. The ALJ also did not consider the fact that Plaintiff had been taking the 27 medication since at least February 2020, yet the January 2022 progress notes indicated that the 1 887. Although Plaintiff may have had some improvement with medication, that does not render 2 her testimony of continuing impairment not credible. The ALJ also mischaracterized the March 3 2022 appointment as a “neurological follow-up,” when the progress notes clearly indicate this was 4 just an annual gynecology exam in which the doctor did not discuss Plaintiff’s migraines. AR 23, 5 874. 6 Regarding new treatment options, the Ninth Circuit has held that, in assessing a claimant’s 7 credibility, an ALJ may consider “unexplained or inadequately explained failure to seek treatment 8 or to follow a prescribed course of treatment.” Smolen, 80 F.3d at 1284. Based on Plaintiff’s brief 9 testimony that she was “not trying to try different medications,” the ALJ concluded that other 10 treatment options existed which Plaintiff could have pursued, and Plaintiff did not pursue them 11 because she had exaggerated the severity and frequency of her migraines. AR 25, 58. There are 12 no medical records indicating that Plaintiff was offered any other treatment options, or that other 13 treatment options might have been more effective than her current prescription. For example, the 14 ALJ states that Plaintiff did not try Botox or anticonvulsants to treat her migraines; but there are 15 no records from a doctor recommending that Plaintiff try them, and no indication that Plaintiff was 16 even aware of these options. AR 23. The ALJ’s belief that other potentially more effective 17 treatment options were available to Plaintiff appears to be speculation. The ALJ also failed to 18 consider other progress notes indicating that Plaintiff did seek further treatments. On December 19 14, 2020, Plaintiff sought a referral for a second surgery on her brain tumor because she was not 20 happy with her prior neurologist’s diagnosis of her migraines. AR 434. The neurologist, Dr. A. 21 K. Bhattacharyya, had simply recommended that Plaintiff “refer to a psychiatrist for treatment of 22 anxiety and depression and . . . avoid the food which has relation with the headache.” AR 435. 23 The ALJ also did not consider progress notes stating that Plaintiff “does not seek help when 24 needed” due to her mental health conditions, and that she is “at-risk of not being able to receive 25 adequate healthcare due to her isolation and irritable behaviors.” AR 378, 750. 26 Third, the ALJ identified inconsistencies in Plaintiff’s alleged marijuana use. At various 27 points throughout 2020 and 2021, Plaintiff stated that she smoked marijuana twice a day, twice a 1 had a medical marijuana card, but there is no valid prescription for marijuana in the record. Id. 2 The ALJ concluded that Plaintiff has “difficulty providing accurate descriptions of . . . her efforts 3 to relieve” her symptoms. Id. The ALJ failed to explain what this has to do with the frequency 4 and severity of her symptoms. Regardless of how often Plaintiff smokes marijuana and whether 5 she has a valid prescription for it, none of these inconsistencies bear on the intensity, persistence, 6 and limiting effects of her impairments. 7 Ultimately, “[i]f the ALJ’s credibility finding is supported by substantial evidence in the 8 record, [courts] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th 9 Cir. 2002). But the ALJ’s assessment was not supported by substantial evidence. Therefore, the 10 court finds that the ALJ erred in her credibility determination. 11 C. The ALJ’s Weighing of the Medical Opinions 12 Plaintiff contends the ALJ erred in finding the opinion of examining neurologist Edie 13 Glantz, MD persuasive; the opinions of non-examining state agency medical consultants R. 14 Dwyer, MD and A. Cepeda, MD persuasive; the opinion of examining psychologist Katherine 15 Weibe, PhD unpersuasive; and the opinion of treating psychologist Elizabeth Nickels, PsyD 16 unpersuasive. 17 1. Legal Standard 18 Plaintiff filed an application for disability benefits after March 27, 2017. Therefore, the 19 court analyzes the claim under the Social Security Administration’s (“SSA”) regulations and 20 Social Security Rulings regarding the evaluation of medical opinion evidence that became 21 applicable as of that date. This includes SSR 96-2p, “Titles II and XVI: Giving Controlling 22 Weight to Treating Source Medical Opinions.” See Rescission of Soc. Sec. Rulings 96-2p, 96-5p, 23 & 06-3p, SSR 96-2P (S.S.A. Mar. 27, 2017). Under the new regulations, the SSA will no longer 24 give “any specific evidentiary weight, including controlling weight,” to medical opinions or prior 25 administrative medical findings, including those from treating physicians. 20 C.F.R. § 26 404.1520c(a); 20 C.F.R. § 416.920c(a). Instead, the SSA must evaluate the “persuasiveness” of 27 all medical opinions based on several factors, including supportability, consistency, the source’s 1 purpose of the treatment relationship, whether the source has examined the claimant, any 2 specialization, and other factors, such as “evidence showing a medical source has familiarity with 3 the other evidence in the claim or an understanding of [the SSA’s] disability program’s policies 4 and evidentiary requirements.” 20 C.F.R. 20 C.F.R. § 404.1520c(a), (c), 20 C.F.R. § 416.920c(a), 5 (c). The two most important factors in determining the persuasiveness of medical opinions are 6 consistency and supportability. Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022) (citing 20 7 C.F.R. § 404.1520c(a)); see also 20 C.F.R. § 416.920c(a). 8 “Although the regulations eliminate the ‘physician hierarchy,’ deference to specific 9 medical opinions, and assigning ‘weight’ to a medical opinion, the ALJ must still ‘articulate how 10 [they] considered the medical opinions’ and ‘how persuasive [they] find all of the medical 11 opinions.” V.W. v. Comm’r of Soc. Sec., No. 18-CV-07297-JCS, 2020 WL 1505716, at *14 (N.D. 12 Cal. Mar. 30, 2020). “[A]n ALJ cannot reject an examining or treating doctor’s opinion as 13 unsupported or inconsistent without providing an explanation supported by substantial evidence.” 14 Woods, 32 F.4th at 792. “The agency must ‘articulate . . . how persuasive’ it finds ‘all of the 15 medical opinions’ from each doctor or other source, and ‘explain how [it] considered the 16 supportability and consistency factors’ in reaching these findings. Id. (quoting 20 C.F.R. §§ 17 404.1520c(b), 404.1520c(b)) (internal citations omitted); see also 20 C.F.R. § 416.920c(b)). 18 “Supportability means the extent to which a medical source supports the medical opinion by 19 explaining the ‘relevant . . . objective medical evidence.’” Woods, 32 F.4th at 791-92; see also 20 20 C.F.R. § 404.1520c(c)(1) (“The more relevant the objective medical evidence and supporting 21 explanations presented by a medical source are to support his or her medical opinion(s) . . . , the 22 more persuasive the medical opinions . . . will be”). “Consistency means the extent to which a 23 medical opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical 24 sources in the claim.’” Woods, 32 F.4th at 792; see also 20 C.F.R. §§ 404.1520c(c)(2) (“The more 25 consistent a medical opinion(s) . . . is with the evidence from other medical sources and 26 nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be”). 27 When rejecting a medical opinion as unsupported or inconsistent, the ALJ is required to 2. Analysis 1 The ALJ’s improper credibility determination likely impacted the ALJ’s assessment of the 2 medical opinion evidence. In particular, the ALJ found that Dr. Weibe’s opinion was unsupported 3 because it was “based on the claimant’s exaggerated assessments of her impairments.” AR 26. 4 The ALJ also found that Dr. Nickels’s opinion was unsupported because it was based in part “on 5 the claimant’s migraines . . . which, as previously discussed, are not fully corroborated by the 6 record.” AR 26. As explained above, the ALJ improperly discredited Plaintiff’s self-reported 7 symptoms. 8 The ALJ also erred in other ways. The ALJ stated that Dr. Wiebe “did not have access to 9 the claimant’s longitudinal medical history and had to rely on the claimant for her treatment 10 history.” Id. However, the record clearly indicates that Dr. Weibe reviewed Plaintiff’s 2019-2021 11 treatment records from Bay Area Community Health Systems and from Washington Hospital 12 Healthcare System before forming her medical opinion. AR 722. The ALJ mischaracterized this 13 record. 14 In addition, regarding Dr. Nickels’s opinion that Plaintiff would be absent from work four 15 or more days per month, the ALJ found that there was “no explanation for this opinion, and it is 16 not supported by the record.” AR 26; 740. Specifically, the ALJ stated that the record “does not 17 reflect a history of no-shows or cancellations.” AR 26. But the ALJ failed to address the many 18 explanations that Dr. Nickels did provide in her opinion, including Plaintiff’s diagnosis of major 19 depressive disorder, history of self-harm, isolating behaviors, fatigue, agitation and irritable mood, 20 and chronic migraines. AR 740-41. The ALJ implies that a history of no-shows is the only 21 evidence which can support a medical opinion that a claimant will be absent from work four or 22 more days per month, which is incorrect. 23 The ALJ shall reconsider the medical opinion evidence on remand. The court does not 24 reach Plaintiff’s arguments regarding Dr. Glantz and the state agency medical consultants. 25 // 26 // 27 // V. CONCLUSION 1 For the foregoing reasons, Plaintiff’s motion for summary judgment is granted. The 2 Commissioner’s motion for summary judgment is denied. This matter is remanded for further 3 proceedings consistent with this opinion. 4

5 IT IS SO ORDERED. 6 Dated: October 15, 2024 7 ______________________________________ 8 Donna M. Ryu Chief Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27