Green v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: March 20, 2023
• Docket: 4:20-cv-05245
• Status: Unknown

Opinion

EASTERN DISTRICT OF WASHINGTON 1 Mar 20, 2023 2 SEAN F. MCAVOY, CLERK 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 6 LEE G., No. 4:20-CV-05245-JAG

7 Plaintiff, ORDER GRANTING 8 PLAINTIFF’S MOTION v. FOR SUMMARY JUDGMENT 9 AND REMANDING FOR 10 KILOLO KIJAKAZI, ADDITIONAL PROCEEDINGS ACTING COMMISSIONER OF 11 SOCIAL SECURITY, 12 13 Defendant.

14 BEFORE THE COURT are cross-motions for summary judgment. ECF 15 16 No. 21, 23. Attorney Chad Hatfield represents Lee G. (Plaintiff); Special Assistant 17 United States Attorney Jeffrey E. Staples represents the Commissioner of Social 18 Security (Defendant). The parties have consented to proceed before a magistrate 19 judge. ECF No. 6. After reviewing the administrative record and the briefs filed 20 by the parties, the Court GRANTS Plaintiff’s Motion for Summary Judgment; 21 DENIES Defendant’s Motion for Summary Judgment; and REMANDS the matter 22 to the Commissioner for additional proceedings pursuant to 42 U.S.C. § 405(g). 23 I. JURISDICTION 24 Plaintiff protectively filed an application for Supplemental Security Income 25 on December 14, 2017, alleging disability since October 1, 2015 due to migraines, 26 neck pain, back pain, insomnia, depression, anxiety, PTSD, bilateral neuropathy, 27 joint pain, and left elbow issues. Tr. 74, 227-31, 234-42. The applications were 28 denied initially and upon reconsideration. Tr. 108-12, 120-26. Administrative 1 2 Law Judge (ALJ) Stewart Stallings held a hearing on May 14, 2020, Tr. 34-73, and 3 issued an unfavorable decision on June 3, 2020. Tr. 14-31. Plaintiff requested 4 review by the Appeals Council and the Appeals Council denied the request for 5 review on October 21, 2020. Tr. 1-6. Accordingly, the ALJ’s June 2020 decision 6 became the final decision of the Commissioner, which is appealable to the district 7 court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review 8 on December 20, 2020. ECF No. 1. 9 II. STATEMENT OF FACTS 10 The facts of the case are set forth in detail in the transcript of proceedings 11 and the ALJ’s decision and only briefly summarized here. Plaintiff was born on 12 January 22, 1983 and was 34 years old on the date the application was filed. Tr. 13 26. He has an 11th grade education. Tr. 308. 14 III. STANDARD OF REVIEW 15 The ALJ is responsible for determining credibility, resolving conflicts in 16 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 17 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 18 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 19 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 20 only if it is not supported by substantial evidence or if it is based on legal error. 21 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 22 23 defined as being more than a mere scintilla, but less than a preponderance. Id. at 24 1098. Put another way, substantial evidence is such relevant evidence as a 25 reasonable mind might accept as adequate to support a conclusion. Richardson v. 26 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 27 rational interpretation, the Court may not substitute its judgment for that of the 28 ALJ. Tackett, 180 F.3d at 1098; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the administrative 1 2 findings, or if conflicting evidence supports a finding of either disability or non- 3 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 4 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 5 substantial evidence will be set aside if the proper legal standards were not applied 6 in weighing the evidence and making the decision. Brawner v. Sec’y of Health and 7 Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 8 IV. SEQUENTIAL EVALUATION PROCESS 9 The Commissioner has established a five-step sequential evaluation process 10 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 11 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four the claimant 12 bears the burden of establishing a prima facie case of disability. Tackett, 180 F.3d 13 at 1098-1099. This burden is met once a claimant establishes that a physical or 14 mental impairment prevents the claimant from engaging in past relevant work. 20 15 C.F.R. § 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ 16 proceeds to step five, and the burden shifts to the Commissioner to show (1) that 17 Plaintiff can perform other substantial gainful activity and (2) that a significant 18 number of jobs exist in the national economy which Plaintiff can perform. Kail v. 19 Heckler, 722 F.2d 1496, 1497-1498 (9th Cir. 1984); Beltran v. Astrue, 700 F.3d 20 386, 389 (9th Cir. 2012). If a claimant cannot make an adjustment to other work in 21 the national economy, the claimant will be found disabled. 20 C.F.R. § 22 23 416.920(a)(4)(v). 24 V. ADMINISTRATIVE FINDINGS 25 On June 3, 2020, the ALJ issued a decision finding Plaintiff was not disabled 26 as defined in the Social Security Act. Tr. 14-31. 27 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 28 activity since December 14, 2017, the application date. Tr. 19. At step two, the ALJ determined Plaintiff had the following severe 1 2 impairments: migraines, anxiety, and depression. Tr. 19. 3 At step three, the ALJ found Plaintiff did not have an impairment or 4 combination of impairments that met or medically equaled the severity of one of 5 the listed impairments. Tr. 20-21. The ALJ assessed Plaintiff’s Residual 6 Functional Capacity (RFC) and found he could perform medium work, but with the 7 following nonexertional limitations: 8 [H]e could frequently climb, stoop, kneel, crouch, and crawl. He would 9 need low stress (e.g., no production paced-conveyor belt type work) work with a predictable work setting. He would need work where 10 concentration is not critical (defined as careful exact evaluation and 11 judgement). 12 Tr. 22. 13 At step four, the ALJ found Plaintiff was unable to perform any past 14 relevant work. Tr. 26. 15 At step five, the ALJ found that, based on the testimony of the vocational 16 expert, and considering Plaintiff’s age, education, work experience, and RFC, 17 Plaintiff could perform jobs that existed in significant numbers in the national 18 economy, including the jobs of janitor, hand packager, and automobile detailer. 19 Tr. 27. 20 The ALJ thus concluded Plaintiff was not under a disability within the 21 meaning of the Social Security Act at any time from the date the application was 22 filed, December 14, 2017, through the date of the decision. Tr. 27. 23 VI. ISSUES 24 The question presented is whether substantial evidence supports the ALJ’s 25 decision denying benefits and, if so, whether that decision is based on proper legal 26 standards. Plaintiff raises the following issues for review: (1) whether the ALJ 27 properly evaluated the medical opinion evidence; (2) whether the ALJ conducted a 28 proper step-two analysis; (3) whether the ALJ conducted a proper step-three 1 2 analysis; (4) whether the ALJ properly evaluated Plaintiff’s symptom complaints; 3 and (5) whether the ALJ conducted a proper step-five analysis. ECF No. 21 at 6. 4 VII. DISCUSSION 5 A. Medical Opinions. 6 Plaintiff contends the ALJ erred by improperly evaluating the opinions of 7 David Morgan, Ph.D., NK Marks, Ph.D., Troy Bruner, Ed.D., and Jay Toews, 8 Ed.D. ECF No. 21 at 8-14. 9 For claims filed on or after March 27, 2017, the ALJ will no longer give any 10 specific evidentiary weight to medical opinions or prior administrative medical 11 findings. 20 C.F.R. § 416.920c(a). Instead, the ALJ will consider and evaluate the 12 persuasiveness of all medical opinions or prior administrative medical findings 13 from medical sources. 20 C.F.R. § 416.920c(a) and (b). The factors for evaluating 14 the persuasiveness of medical opinions and prior administrative findings include 15 supportability, consistency, the source’s relationship with the claimant, any 16 specialization of the source, and other factors (such as the source’s familiarity with 17 other evidence in the file or an understanding of Social Security’s disability 18 program). 20 C.F.R. § 416.920c(c)(1)-(5). The regulations make clear that the 19 supportability and consistency of the opinion are the most important factors, and 20 the ALJ must articulate how they considered both factors in determining the 21 persuasiveness of each medical opinion or prior administrative medical finding. 20 22 23 C.F.R. § 416.920c(b)(2). The ALJ may explain how they considered the other 24 factors, but is not required to do so, except in cases where two or more opinions 25 are equally well-supported and consistent with the record. Id. 26 Supportability and consistency are explained in the regulations: 27 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 28 support his or her medical opinion(s) or prior administrative medical 1 finding(s), the more persuasive the medical opinions or prior 2 administrative medical finding(s) will be. 3 (2) Consistency. The more consistent a medical opinion(s) or prior 4 administrative medical finding(s) is with the evidence from other 5 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 6 finding(s) will be. 7 20 C.F.R. § 416.920c(c)(1)-(2). 8 The Ninth Circuit addressed the issue of whether the new regulatory 9 framework displaces the longstanding case law requiring an ALJ to provide 10 specific and legitimate reasons to reject an examining provider’s opinion. Woods 11 v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). The Court held that the new 12 regulations eliminate any hierarchy of medical opinions, and the specific and 13 legitimate standard no longer applies. Id. at 788-89, 792. The Court reasoned the 14 “relationship factors” remain relevant under the new regulations, and thus the ALJ 15 can still consider the length and purpose of the treatment relationship, the 16 frequency of examinations, the kinds and extent of examinations that the medical 17 18 source has performed or ordered from specialists, and whether the medical source 19 has examined the claimant or merely reviewed the claimant’s records. Id. at 790, 20 792. Even under the new regulations, an ALJ must provide an explanation 21 supported by substantial evidence when rejecting an examining or treating doctor’s 22 opinion as unsupported or inconsistent. Id. at 792. 23 1. Dr. Morgan. 24 On November 19, 2019, Dr. Morgan conducted a psychological/psychiatric 25 evaluation of Plaintiff for Washington State DSHS and rendered an opinion on 26 Plaintiff’s level of functioning. Tr. 375-79. Dr. Morgan diagnosed Plaintiff with 27 PTSD. Tr. 376. Dr. Morgan opined Plaintiff had marked limitation in his ability 28 to perform activities within a schedule, maintain regular attendance, and be 1 2 punctual within customary tolerances without special supervision, to adapt to 3 changes in a routine work setting, communicate effectively and perform effectively 4 in a work setting, maintain appropriate behavior in a work setting, and to complete 5 a normal workday and workweek without interruptions from psychologically based 6 symptoms; and moderate limitation in his ability to understand, remember and 7 persist in tasks by following detailed instructions, learn new tasks, perform tasks 8 without special supervision, make simple work related decisions, be aware of 9 normal hazards and take appropriate precautions, ask simple questions or request 10 assistance, and to set realistic goals and plan independently. Tr. 377. Dr. Morgan 11 opined Plaintiff’s overall severity rating was moderate, and that with available 12 treatment he would be so impaired for nine months. Id. 13 The ALJ found Dr. Morgan’s opinion persuasive because it was consistent 14 with his own objective findings “as well as the largely benign mental status exams 15 at 1F [Dr. Bruner] and 9F [Dr. Marks].” Tr. 26. Plaintiff contends the ALJ 16 mischaracterized Dr. Morgan’s opinion, finding he only assessed moderate 17 limitations when Dr. Morgan actually found several marked limitations and 18 diagnosed Plaintiff with PTSD. ECF No. 21 at 8-9. Defendant argues that any 19 error was harmless as Dr. Morgan’s opinion was not useful for assessing Plaintiff’s 20 functioning over the long term. ECF No. 23 at 14. 21 The Court finds that the ALJ’s conclusions are not supported by substantial 22 23 evidence. First, as Plaintiff points out, the ALJ misstates Dr. Morgan’s opinion; 24 the ALJ found that Dr. Morgan “opined [Plaintiff] had moderate limitations in his 25 basic work activities that would persist for nine months with treatment.” Tr. 26. 26 However, Dr. Morgan also found numerous marked limitations in basic work 27 activities. Tr. 377. Although Defendant argues the ALJ properly considered Dr. 28 Morgan’s opinion because he assigned an overall severity rating of moderate and Dr. Morgan’s limitations only lasted nine months, the ALJ did not provide such 1 2 rationale, thus the Court will not consider Defendant’s post hoc rationalization. 3 See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (The Court will “review only 4 the reasons provided by the ALJ in the disability determination and may not affirm 5 the ALJ on a ground upon which he did not rely.”). 6 Defendant also argues any error was harmless. ECF No. 23 at 14. An error 7 is harmful unless the reviewing court “can confidently conclude that no ALJ, when 8 fully crediting the [evidence], could have reached a different disability 9 determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 10 2006). Here, Dr. Morgan diagnosed Plaintiff with PTSD, noting symptoms of 11 “moderate to marked severity; daily frequency,” and he assessed Plaintiff with 12 multiple marked and moderate limitations in basic work activities, including 13 marked limitation in his ability to maintain attendance and complete a normal 14 workday and workweek. Tr. 376-77. Dr. Morgan also noted that “Plaintiff also 15 reports significant medical issues that could contribute to even greater inability to 16 work.” Tr. 378. Elsewhere in the record, however, the ALJ concluded that “there 17 was no diagnosis of PTSD on record,” even though Dr. Morgan and Dr. Marks 18 (infra) did make this diagnosis. Tr. 20, 366, 376. The ALJ also failed to discuss 19 significant portions of Dr. Morgan’s opinion, then used his conclusions regarding 20 Dr. Morgan’s opinion to bolster his findings regarding other medical opinions, 21 including those of Dr. Marks and Dr. Bruner. See Tr. 25-26. The Court finds that 22 23 an ALJ, when fully crediting the evidence, could have reached a different disability 24 determination. The ALJ harmfully erred by misstating Dr. Morgan’s 25 findings/opinion and therefore his conclusions were not based on substantial 26 evidence. 27 28 Upon remand the ALJ is instructed to reconsider the persuasiveness of Dr. 1 2 Morgan’s opinion and incorporate the opinion into the RFC or give reasons 3 supported by substantial evidence to reject the opinion. 4 2. Dr. Marks. 5 In January 2018, Dr. Marks conducted a psychological/psychiatric 6 evaluation of Plaintiff on behalf of Washington State DSHS and rendered an 7 opinion on Plaintiff’s level of functioning. Tr. 364-69. Dr. Marks diagnosed 8 Plaintiff with PTSD, generalized anxiety disorder, and unspecified depressive 9 disorder. Tr. 366. Dr. Marks opined Plaintiff had marked limitation in his ability 10 to understand, remember, and persist in tasks by following detailed instructions, 11 adapt to changes in a routine work setting, be aware of normal hazards and take 12 appropriate precautions, communicate effectively and perform effectively in a 13 work setting, and to set realistic goals and plan independently; and moderate limits 14 in his ability to understand, remember, and persist in tasks by following very short 15 and simple instructions, perform activities within a schedule, maintain regular 16 attendance, and be punctual within customary tolerances without special 17 supervision, learn new tasks, make simple work related decisions, ask simple 18 questions or request assistance, and to complete a normal workday and workweek 19 without interruptions from psychologically based symptoms. She opined the 20 overall severity rating of his mental impairments was marked and that he would be 21 so impaired for 12 months. Tr. 367. She recommended counseling, assistance 22 23 with housing, and referral to vocational rehabilitation. Id. 24 The ALJ found Dr. Mark’s opinion unpersuasive because it was 25 “inconsistent with her own normal objective findings as well as the benign mental 26 status exams at 1F [Dr. Bruner] and 9F [Dr. Morgan].” Plaintiff argues the ALJ 27 erred by failing to offer rationale for his findings and failing to account for 28 abnormal findings by Dr. Marks and the other examining providers. ECF No. 21 at 9-11. Defendant argues the ALJ reasonably found the opinion unpersuasive 1 2 because it lacked support and consistency. ECF No. 23 at 10-11. 3 The Court finds the ALJ’s conclusions are not supported by substantial 4 evidence. First, the ALJ found Dr. Marks’s opinion unpersuasive because it was 5 “inconsistent with her own normal objective findings.” Tr. 25. The more relevant 6 objective evidence and supporting explanations that support a medical opinion, the 7 more persuasive the medical opinion becomes. 20 C.F.R. § 416.920c(c)(1). 8 Additionally, a clinical interview and mental status evaluation are objective 9 measures and cannot be discounted as a “self-report.” Buck v. Berryhill, 869 F.3d 10 1040, 1049 (9th Cir. 2017). Here, Dr. Marks performed a clinical interview and 11 mental status exam, and noted abnormal findings including depressed mood, 12 constricted affect, and “slow processing time, seems depressed, low energy.” Tr. 13 368-69. While she noted Plaintiff was cooperative, Dr. Marks also observed he 14 was “anxious” and “had trouble focusing at times due to pain.” Tr. 368. Dr. 15 Marks opined that “he is struggling with depression, dealing with his past history 16 of abuse.” Tr. 367. Accordingly, the ALJ’s finding that Dr. Marks’ opinion was 17 inconsistent with her own normal objective findings is not supported by substantial 18 evidence. 19 Second, the ALJ concluded Dr. Marks’ opinion was inconsistent with “the 20 benign mental status exams [of Dr. Morgan and Dr. Bruner].” Again, the more 21 consistent an opinion is with the evidence from other sources, the more persuasive 22 23 the opinion becomes. 20 C.F.R. § 416.920c(c)(2). As explained supra, the ALJ 24 misstated Dr. Morgan’s opinion. Additionally, Dr. Bruner (infra) and Dr. Marks 25 observed similar abnormalities upon mental status exam; Dr. Bruner observed 26 Plaintiff’s depressed mood and dysphoric affect, his tired appearance and 27 “psychomotor slowing,” along with slow movement and speech, while Dr. Marks 28 observed his depressed mood, constricted affect, and “slow processing time … low energy.” Tr. 309, 368-69. The ALJ’s conclusion that Dr. Mark’s opinion is 1 2 inconsistent with benign mental status exams of Dr. Morgan and Dr. Bruner is not 3 supported by substantial evidence. 4 Upon remand, the ALJ shall also reconsider Dr. Marks’s opinion and 5 incorporate the limitations into the RFC or give reasons supported by substantial 6 evidence to reject the opinion. 7 3. Dr. Bruner. 8 In March 2018, Dr. Bruner conducted a consultative mental health 9 evaluation of Plaintiff and rendered an opinion on Plaintiff’s level of functioning. 10 Tr. 307-11. Dr. Bruner diagnosed Plaintiff with unspecified anxiety disorder; 11 major depressive disorder, single episode, moderate without psychotic features; 12 and rule out PTSD. Tr. 310-11. He opined Plaintiff would not have difficulty 13 performing simple/repetitive or detailed/complex tasks; he would not have 14 difficulty accepting instructions from supervisors or interacting with co-workers or 15 the public, and he would not have difficulty performing work activities without 16 special instructions. Tr. 310. He also opined Plaintiff would have difficulty 17 maintaining attendance due to interruptions from a psychiatric condition, and that 18 he would have difficulty managing the usual stress encountered in the workplace 19 noting “he is not managing his current stressors and was unable to articulate 20 proactive problem solving skills or coping skills.” Tr. 310-11. 21 The ALJ found Dr. Bruner’s opinion partially persuasive; he found “his 22 23 opinion regarding the [Plaintiff] having no difficulties persuasive” because it was 24 consistent with Dr. Bruner’s own “largely benign mental status findings,” along 25 with those of Dr. Marks and Dr. Morgan. Tr. 25. The ALJ found “the last two 26 paragraphs of his opinion to be ambiguous.” Id. Plaintiff argues the ALJ failed to 27 explain his conclusions and erred by inserting his own lay opinion in place of the 28 examining doctor’s clinical findings and professional observations. ECF No. 21 at 13-14. Defendant argues the ALJ reasonably found Dr. Bruner’s opinion only 1 2 partially persuasive because Dr. Bruner did not set forth or explain any concrete 3 limitations and that any error was harmless as the RFC accounted for Dr. Bruner’s 4 opinion. ECF No. 23 at 12-13. 5 The Court finds the ALJ’s findings are not supported by substantial 6 evidence. First, the ALJ found Dr. Bruner’s opinion that Plaintiff “had no 7 difficulties is persuasive” because it was consistent with the largely benign mental 8 status exams by [Dr. Bruner], [Dr. Marks], and [Dr. Morgan].” Tr. 25. The more 9 consistent an opinion is with the evidence from other sources, the more persuasive 10 the opinion. 20 C.F.R. § 416.920c(c)(2). As explained supra, the ALJ misstated 11 Dr. Morgan’s opinion, and failed to discuss abnormalities upon mental status 12 exams performed by Dr. Morgan and Dr. Marks. Here, the ALJ similarly failed to 13 acknowledge abnormalities in Dr. Bruner’s objective findings, including depressed 14 mood and dysphoric affect, Plaintiff’s tired appearance and “psychomotor 15 slowing,” along with slow movement and speech. Tr. 309. As Plaintiff points out, 16 the ALJ supported his findings for each medical opinion above by noting it was 17 consistent with the “benign mental status exams” of the other providers. ECF No. 18 21 at 11; see Tr. 25-26. Review of the medical opinions shows more mixed 19 findings, and the ALJ’s conclusion that Dr. Bruner’s opinion was consistent with 20 his and other provider’s benign mental status exams is not supported by substantial 21 evidence. 22 23 Next, the ALJ found “the last two paragraphs of [Dr. Bruner’s] opinion to be 24 ambiguous.” Tr. 25. This is insufficient. “The ALJ must do more than state 25 conclusions. He must set forth his own interpretations and explain why they, 26 rather than the doctors’ are correct.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th 27 Cir. 2014) (internal citations omitted); see also Regennitter v. Comm’r of Soc. Sec. 28 Admin., 166 F.3d 1294, 1299 (9th Cir. 1999) (“[C]onclusory reasons will not justify an ALJ’s rejection of a medical opinion.”). Further, the more relevant 1 2 objective evidence and supporting explanations that support a medical opinion, the 3 more persuasive the medical opinion. 20 C.F.R. § 416.920c(c)(1). Here, Dr. 4 Bruner explained his observations from a clinical interview and mental status 5 exam, then specifically referenced findings including psychomotor retardation and 6 dysphoric affect to explain his opinion that Plaintiff would have difficulty 7 maintaining attendance and managing the usual stress of a workplace. Tr. 310. 8 Without the ALJ offering more than his stated conclusion that this portion of the 9 medical opinion was ambiguous, the Court is unable to meaningfully review 10 whether the ALJ’s interpretation of the medical evidence, rather than Dr. Bruner’s 11 opinion, is rational. 12 On remand, the ALJ shall also reconsider Dr. Bruner’s opinion and 13 incorporate the limitations into the RFC or give reasons supported by substantial 14 evidence to reject the opinion. 15 4. Dr. Toews. 16 At the hearing, Dr. Toews testified that based on review of the record, 17 Plaintiff did not meet or equal any mental health listings. Tr. 61. He opined 18 mental health impairments caused Plaintiff no limits in his ability to understand, 19 remember or apply information; no limit in his ability to interact with others; mild 20 to marked limits in his ability to concentrate, persist, or maintain pace; and 21 moderate limits in his ability to adapt and manage himself. Tr. 63. He also opined 22 23 that marked limitations in his ability to concentrate, persist, or maintain pace 24 would arise if Plaintiff had to perform consistently in a work setting. Id. Dr. 25 Toews further opined that “independent of pain, I don’t think there is any real 26 significant problem with anxiety or depression” and that adaption issues are also 27 related to Plaintiff’s pain. Tr. 63. He opined he agreed with the assessment of Dr. 28 Bruner (supra) and that “working would be very challenging … [his] pain level would determine whether or not he’s capable of working or not, at least from a 1 2 psychological point of view.” Tr. 63-64. 3 The ALJ found Dr. Toews’s opinion unpersuasive because it was internally 4 inconsistent and because marked limitations were inconsistent with the 5 longitudinal record. Plaintiff contends the findings cited by the ALJ actually 6 support Dr. Toews’s opinion and that Dr. Toews was the only provider to consider 7 the combined effects of Plaintiff’s physical and psychological complaints. ECF 8 No. 21 at 12-13. Defendant argues the ALJ reasonably found Dr. Toews opinion 9 unpersuasive relying on the evidence from mental status exams and the 10 longitudinal record. ECF No. 23 at 13. 11 As the claim is being remanded for reconsideration of the opinions of Dr. 12 Morgan, Dr. Marks, and Dr. Bruner, the ALJ shall also reconsider Dr. Toews’s 13 opinion, taking into consideration the factors as required by the regulations and 14 considering the record as a whole. 15 5. Prior Administrative Findings. 16 In March 2018 and July 2018, the state agency physical and mental 17 consultants reviewed the available records and assessed Plaintiff’s level of 18 functioning. Tr. 83-87, 99-102. The ALJ did not discuss the prior administrative 19 findings. See Tr. 24-26. An ALJ is required to articulate how they considered the 20 consistency and supportability factors in determining the persuasiveness of each 21 medical opinion or prior administrative medical finding. 20 C.F.R. § 416.920a(b). 22 23 Given the matter is being remanded for the ALJ to reevaluate other medical 24 opinions, the ALJ is also directed to consider the prior administrative findings. 25 Upon remand the ALJ is instructed to reassess all medical opinion evidence 26 and incorporate the limitations into the RFC or give reasons supported by 27 substantial evidence to reject the opinions. 28 B. Step Two. 1 2 Plaintiff contends the ALJ erred at step two by failing to find that PTSD was 3 a severe impairment. ECF No. 21 at 14. At step two of the sequential evaluation 4 process, the ALJ must determine whether the claimant has any medically 5 determinable severe impairments. 20 C.F.R. § 416.920(a)(ii). The impairment 6 “must result from anatomical, physiological, or psychological abnormalities that 7 can be shown by medically acceptable clinical and laboratory diagnostic 8 techniques.” 20 C.F.R. § 416.921. An impairment is “not severe” if it does not 9 “significantly limit” the ability to conduct “basic work activities.” 20 C.F.R. 10 § 416.922(a). “An impairment or combination of impairments can be found not 11 severe only if the evidence establishes a slight abnormality that has no more than a 12 minimal effect on an individual’s ability to work.” Smolen v. Chater, 80 F.3d 13 1273, 1290 (9th Cir. 1996) (internal quotation marks omitted). The claimant bears 14 the burden of demonstrating that an impairment is medically determinable and 15 severe. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). 16 The step-two analysis is “a de minimis screening device used to dispose of 17 groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 18 As this claim is being remanded for reevaluation of the medical opinion 19 evidence, the ALJ shall also reconsider Plaintiff’s impairments at step two. 20 C. Step Three. 21 Plaintiff argues the ALJ erred in making inadequate step three findings. 22 23 ECF No. 21 at 15-18. At step three of the sequential evaluation process, the ALJ 24 considers whether one or more of the claimant’s impairments meets or equals an 25 impairment listed in Appendix 1 to Subpart P of the regulations. 20 C.F.R. 26 § 416.920(a)(4)(iii). Each Listing sets forth the “symptoms, signs, and laboratory 27 findings” which must be established for a claimant’s impairment to meet the 28 Listing. Tackett, 180 F.3d at 1099. If a claimant meets or equals a Listing, the 1 2 claimant is considered disabled without further inquiry. 20 C.F.R. § 404.1520(d). 3 Here, the ALJ found Plaintiff’s impairments or combination of impairments 4 did not meet or equal any listing. Tr. 20-22. As this case is being remanded for 5 the ALJ to reconsider the medical opinion evidence, the ALJ is instructed to 6 reconsider whether any of Plaintiff’s impairments meet or equal a listing. 7 D. Plaintiff’s Subjective Statements. 8 Plaintiff contends the ALJ erred by improperly rejecting his subjective 9 complaints. ECF No. 21 at 18-20. 10 It is the province of the ALJ to make determinations regarding a claimant’s 11 subjective statements. Andrews, 53 F.3d at 1039. However, the ALJ’s findings 12 must be supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 13 1231 (9th Cir. 1990). Once the claimant produces medical evidence of an 14 underlying medical impairment, the ALJ may not discredit testimony as to the 15 severity of an impairment merely because it is unsupported by medical evidence. 16 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence 17 of malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 18 “specific, clear and convincing.” Smolen, 80 F.3d at 1281; Lester, 81 F.3d at 834. 19 “General findings are insufficient: rather the ALJ must identify what testimony is 20 not credible and what evidence undermines the claimant’s complaints.” Lester at 21 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 22 23 The ALJ concluded Plaintiff’s medically determinable impairments could 24 reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 25 statements concerning the intensity, persistence and limiting effects of those 26 symptoms were not entirely consistent with the medical evidence and other 27 evidence in the record. Tr. 23. The ALJ found the objective evidence did not 28 support the level of limitation claimed, the totality of the record did not support disabling conditions, Plaintiff has sought minimal treatment and has not always 1 2 complied with treatment, Plaintiff’s report of symptoms has been inconsistent, and 3 that there were other inconsistencies in the records. Tr. 23-24. 4 The ALJ’s evaluation of Plaintiff’s symptom claims and the resulting 5 limitations largely relies on the ALJ’s assessment of the medical evidence. Having 6 determined a remand is necessary to readdress the medical opinion evidence, any 7 reevaluation must necessarily entail a reassessment of Plaintiff’s subjective 8 symptom claims. Thus, the Court need not reach this issue and on remand the ALJ 9 must also carefully reevaluate Plaintiff’s symptom claims in the context of the 10 entire record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because 11 we remand the case to the ALJ for the reasons stated, we decline to reach 12 [plaintiff’s] alternative ground for remand.”). 13 E. Step Five. 14 Plaintiff contends the ALJ erred by failing to conduct an adequate analysis at 15 step five. ECF No. 21 at 20-21. “[I]f a claimant establishes an inability to 16 continue [his] past work, the burden shifts to the Commissioner in step five to 17 show that the claimant can perform other substantial gainful work.” Burch v. 18 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing Swenson v. Sullivan, 876 F.2d 19 683, 687 (9th Cir. 1989)). At step five, “the ALJ ... examines whether the claimant 20 has the [RFC] ... to perform any other substantial gainful activity in the national 21 economy.” Id. “If the claimant is able to do other work, then the Commissioner 22 23 must establish that there are a significant number of jobs in the national economy 24 that claimant can do.” Tackett, 180 F.3d at 1099. “There are two ways for the 25 Commissioner to meet the burden of showing that there is other work in 26 ‘significant numbers’ in the national economy that claimant can do: (1) by the 27 testimony of a [VE], or (2) by reference to the Medical-Vocational Guidelines....” 28 Id. “If the Commissioner meets this burden, the claimant is not disabled and therefore not entitled to ... benefits.” Id. (citation omitted). “If the Commissioner 1 2 cannot meet this burden, then the claimant is disabled and therefore entitled to ... 3 benefits.” Id. (citation omitted). 4 As the case is being remanded for the ALJ to reconsider the medical 5 evidence, the ALJ is also instructed to perform the sequential analysis anew, 6 including step-five. 7 VIII. CONCLUSION 8 Plaintiff argues the decision should be reversed and remanded for the 9 payment of benefits. The Court has the discretion to remand the case for additional 10 evidence and findings or to award benefits. Smolen, 80 F.3d at 1292. The Court 11 may award benefits if the record is fully developed and further administrative 12 proceedings would serve no useful purpose. Id. Remand is appropriate when 13 additional administrative proceedings could remedy defects. Rodriguez v. Bowen, 14 876 F.2d 759, 763 (9th Cir. 1989). Additionally, the Court will not remand for 15 immediate payment of benefits if “the record as a whole creates serious doubt that 16 a claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. In this case, the 17 Court finds that further proceedings are necessary to resolve conflicts in the record, 18 including conflicting medical opinions. As such, the case is remanded for further 19 proceedings consistent with this Order. 20 The ALJ’s decision is not supported by substantial evidence and is not free 21 of harmful legal error. On remand, the ALJ shall reevaluate the evidence of 22 23 record, including all medical opinion evidence, making findings on each of the five 24 steps of the sequential evaluation process and taking into consideration any other 25 evidence or testimony relevant to Plaintiff’s disability claim. 26 Accordingly, IT IS ORDERED: 27 1. Plaintiff’s Motion for Summary Judgment, ECF No. 21, is 28 GRANTED. 1 2. Defendant’s Motion for Summary Judgment, ECF No. 23, is DENIED. 3 3. The matter is REMANDED to the Commissioner for additional 4|| proceedings consistent with this Order. 5 4. An application for attorney fees may be filed by separate motion. 6 5. The District Court Executive is directed to file this Order and provide 7\| a copy to counsel for Plaintiff and Defendant. Judgment shall be entered for 8|| Plaintiff and the file shall be CLOSED. 9 IT IS SO ORDERED. DATED March 20, 2023.

14 as UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28