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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 LENKO H., 9 Plaintiff, Case No. C24-2035-SKV 10 v. ORDER REVERSING THE COMMISSIONER’S DECISION 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 14 Plaintiff seeks review of the denial of his applications for Supplemental Security Income 15 (SSI) and Disability Insurance Benefits (DIB). Having considered the ALJ’s decision, the 16 administrative record (AR), and all memoranda of record, the Court REVERSES the 17 Commissioner’s final decision and REMANDS the matter for further administrative 18 proceedings. 19 BACKGROUND 20 Plaintiff was born in July 1961, has a high school education, and has worked as a food 21 service manager and dough mixer. AR 28-29. Plaintiff was last gainfully employed in January 22 2020. AR 21. 23 1 On December 17, 2021, Plaintiff applied for benefits, alleging disability as of January 7, 2 2020. AR 214-19. Plaintiff’s applications were denied initially and on reconsideration, and 3 Plaintiff requested a hearing. AR 19. After the ALJ conducted a hearing on November 9, 2023, 4 the ALJ issued a decision finding Plaintiff not disabled. AR 19.
5 THE ALJ’S DECISION 6 Utilizing the five-step disability evaluation process,1 the ALJ found:
7 Step one: Plaintiff has not engaged in substantial gainful activity since January 7, 2020.
8 Step two: Plaintiff has the following severe impairments: left kidney cancer status post- surgery; lumbar spine degenerative disc disease; and inguinal hernias status post-surgery. 9 Step three: These impairments do not meet or equal the requirements of a listed 10 impairment.2
11 Residual Functional Capacity (RFC): As of February 2, 2022, Plaintiff had the RFC to perform medium work, with the following additional limitations: frequent climbing, 12 stooping, kneeling, crouching, and crawling. For the period beginning February 3, 2022, Plaintiff has the RFC to perform light work with the same postural limitations. 13 Step four: Plaintiff can perform past relevant work. 14 Step five: As there are jobs that exist in significant numbers in the national economy that 15 Plaintiff can perform, Plaintiff is not disabled.
16 AR 21-30. 17 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the 18 Commissioner’s final decision. AR 3. Plaintiff appealed the final decision of the Commissioner 19 to this Court. Dkt. 1. The parties consented to proceed before the undersigned Magistrate Judge. 20 Dkt. 4. 21
22 23 1 20 C.F.R. §§ 404.1520, 416.920. 2 20 C.F.R. Part 404, Subpart P., App. 1. 1 LEGAL STANDARDS 2 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 3 security benefits when the ALJ’s findings are based on harmful legal error or not supported by 4 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir.
5 2005). As a general principle, an ALJ’s error may be deemed harmless where it is 6 “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 7 1115 (9th Cir. 2012) (cited sources omitted). The Court looks to “the record as a whole to 8 determine whether the error alters the outcome of the case.” Id. 9 Substantial evidence is “more than a mere scintilla. It means - and means only - such 10 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 11 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (cleaned up); Magallanes v. Bowen, 881 F.2d 12 747, 750 (9th Cir. 1989). The ALJ is responsible for evaluating symptom testimony, resolving 13 conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. 14 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record
15 as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the 16 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is 17 susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that 18 must be upheld. Id. 19 DISCUSSION 20 Plaintiff argues the ALJ erred by misevaluating the medical opinion evidence, 21 misevaluating Plaintiff’s subjective symptom testimony, and failing to account for Plaintiff’s 22 non-severe impairments in formulating the RFC. The Commissioner argues the ALJ’s decision 23 is free of harmful legal error, supported by substantial evidence, and should be affirmed. 1 A. The ALJ Erred in Evaluating the Medical Opinion Evidence 2 Under regulations applicable to this case, the ALJ is required to articulate the 3 persuasiveness of each medical opinion, specifically with respect to whether the opinions are 4 supported and consistent with the record. See 20 C.F.R. § 416.920c(a)-(c). An ALJ’s
5 consistency and supportability findings must be supported by substantial evidence. See Woods v. 6 Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 7 The ALJ considered the opinion of Brian Fong, M.D., and discounted it as unsupported 8 and inconsistent with the “workup findings.” AR 28. Specifically, the ALJ found Dr. Fong did 9 not support his opinion because he used a check-box form, did not include explanations with his 10 answers, and “his opinion is not supported by his treatment notes.” AR 28. He further found, 11 without citation, Dr. Fong’s opinion inconsistent with “remission of kidney cancer, with physical 12 examinations showing greater capability, and with the lack of pain observations by providers.” 13 AR 28. 14 Dr. Fong is a urologist who treats Plaintiff and performed the surgery to remove his
15 kidney. AR 365-66, 3017. He opined that Plaintiff would likely be off task fifteen percent of the 16 day, could only maintain attention and concentration for less than an hour before needing a 17 break, would likely miss three days of work a month due to fatigue, and had other moderate 18 exertional limitations. AR 3017-20. Dr. Fong’s patient notes indicate that Plaintiff was having 19 “bothersome frequency” regarding his need to urinate, including waking up two-to-three times a 20 night, which even maximal prescriptions did not relieve. AR 399-400 (January 2022 “nocturia 21 x2”), AR 467-68 (August 2020 “still nocturia x2.”), AR 481 (Complaining of need to urinate 2- 22 4x a night during January 22, 2020 first follow-up appointment after kidney surgery), AR 1151 23 (July 2022 “but still nocturia x2 with bothersome frequency.”), AR 1360 (January 2022 “still 1 nocturia x2 with bothersome frequency.”), AR 2188 (March 2023 “nocturia x2 with bothersome 2 frequency so now on maximal Rx with Finasteride and Flomax 0.8mg but still has frequency”), 3 AR 2198 (“The patient is having worsening symptoms related to benign prostatic hyperplasia 4 despite therapy. Long term side effects of continue[sic] obstruction were discussed including
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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 LENKO H., 9 Plaintiff, Case No. C24-2035-SKV 10 v. ORDER REVERSING THE COMMISSIONER’S DECISION 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 14 Plaintiff seeks review of the denial of his applications for Supplemental Security Income 15 (SSI) and Disability Insurance Benefits (DIB). Having considered the ALJ’s decision, the 16 administrative record (AR), and all memoranda of record, the Court REVERSES the 17 Commissioner’s final decision and REMANDS the matter for further administrative 18 proceedings. 19 BACKGROUND 20 Plaintiff was born in July 1961, has a high school education, and has worked as a food 21 service manager and dough mixer. AR 28-29. Plaintiff was last gainfully employed in January 22 2020. AR 21. 23 1 On December 17, 2021, Plaintiff applied for benefits, alleging disability as of January 7, 2 2020. AR 214-19. Plaintiff’s applications were denied initially and on reconsideration, and 3 Plaintiff requested a hearing. AR 19. After the ALJ conducted a hearing on November 9, 2023, 4 the ALJ issued a decision finding Plaintiff not disabled. AR 19.
5 THE ALJ’S DECISION 6 Utilizing the five-step disability evaluation process,1 the ALJ found:
7 Step one: Plaintiff has not engaged in substantial gainful activity since January 7, 2020.
8 Step two: Plaintiff has the following severe impairments: left kidney cancer status post- surgery; lumbar spine degenerative disc disease; and inguinal hernias status post-surgery. 9 Step three: These impairments do not meet or equal the requirements of a listed 10 impairment.2
11 Residual Functional Capacity (RFC): As of February 2, 2022, Plaintiff had the RFC to perform medium work, with the following additional limitations: frequent climbing, 12 stooping, kneeling, crouching, and crawling. For the period beginning February 3, 2022, Plaintiff has the RFC to perform light work with the same postural limitations. 13 Step four: Plaintiff can perform past relevant work. 14 Step five: As there are jobs that exist in significant numbers in the national economy that 15 Plaintiff can perform, Plaintiff is not disabled.
16 AR 21-30. 17 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the 18 Commissioner’s final decision. AR 3. Plaintiff appealed the final decision of the Commissioner 19 to this Court. Dkt. 1. The parties consented to proceed before the undersigned Magistrate Judge. 20 Dkt. 4. 21
22 23 1 20 C.F.R. §§ 404.1520, 416.920. 2 20 C.F.R. Part 404, Subpart P., App. 1. 1 LEGAL STANDARDS 2 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 3 security benefits when the ALJ’s findings are based on harmful legal error or not supported by 4 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir.
5 2005). As a general principle, an ALJ’s error may be deemed harmless where it is 6 “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 7 1115 (9th Cir. 2012) (cited sources omitted). The Court looks to “the record as a whole to 8 determine whether the error alters the outcome of the case.” Id. 9 Substantial evidence is “more than a mere scintilla. It means - and means only - such 10 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 11 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (cleaned up); Magallanes v. Bowen, 881 F.2d 12 747, 750 (9th Cir. 1989). The ALJ is responsible for evaluating symptom testimony, resolving 13 conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. 14 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record
15 as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the 16 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is 17 susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that 18 must be upheld. Id. 19 DISCUSSION 20 Plaintiff argues the ALJ erred by misevaluating the medical opinion evidence, 21 misevaluating Plaintiff’s subjective symptom testimony, and failing to account for Plaintiff’s 22 non-severe impairments in formulating the RFC. The Commissioner argues the ALJ’s decision 23 is free of harmful legal error, supported by substantial evidence, and should be affirmed. 1 A. The ALJ Erred in Evaluating the Medical Opinion Evidence 2 Under regulations applicable to this case, the ALJ is required to articulate the 3 persuasiveness of each medical opinion, specifically with respect to whether the opinions are 4 supported and consistent with the record. See 20 C.F.R. § 416.920c(a)-(c). An ALJ’s
5 consistency and supportability findings must be supported by substantial evidence. See Woods v. 6 Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 7 The ALJ considered the opinion of Brian Fong, M.D., and discounted it as unsupported 8 and inconsistent with the “workup findings.” AR 28. Specifically, the ALJ found Dr. Fong did 9 not support his opinion because he used a check-box form, did not include explanations with his 10 answers, and “his opinion is not supported by his treatment notes.” AR 28. He further found, 11 without citation, Dr. Fong’s opinion inconsistent with “remission of kidney cancer, with physical 12 examinations showing greater capability, and with the lack of pain observations by providers.” 13 AR 28. 14 Dr. Fong is a urologist who treats Plaintiff and performed the surgery to remove his
15 kidney. AR 365-66, 3017. He opined that Plaintiff would likely be off task fifteen percent of the 16 day, could only maintain attention and concentration for less than an hour before needing a 17 break, would likely miss three days of work a month due to fatigue, and had other moderate 18 exertional limitations. AR 3017-20. Dr. Fong’s patient notes indicate that Plaintiff was having 19 “bothersome frequency” regarding his need to urinate, including waking up two-to-three times a 20 night, which even maximal prescriptions did not relieve. AR 399-400 (January 2022 “nocturia 21 x2”), AR 467-68 (August 2020 “still nocturia x2.”), AR 481 (Complaining of need to urinate 2- 22 4x a night during January 22, 2020 first follow-up appointment after kidney surgery), AR 1151 23 (July 2022 “but still nocturia x2 with bothersome frequency.”), AR 1360 (January 2022 “still 1 nocturia x2 with bothersome frequency.”), AR 2188 (March 2023 “nocturia x2 with bothersome 2 frequency so now on maximal Rx with Finasteride and Flomax 0.8mg but still has frequency”), 3 AR 2198 (“The patient is having worsening symptoms related to benign prostatic hyperplasia 4 despite therapy. Long term side effects of continue[sic] obstruction were discussed including
5 urinary retention, bladder dysfunction, gross hematuria, urinary tract infection, bladder stones 6 and renal insufficiency.”), AR 2970 (“left clear cell renal cell carcinoma resected on 1/2/2020”). 7 Dr. Fong was also listed as a provider who would receive Plaintiff’s medical reports, and as such 8 presumably had an overall picture of Plaintiff’s medical conditions. AR 2901. The use of a 9 check-box form is not a proper basis to reject an opinion which treating notes support. Garrison 10 v. Colvin, 759 F.3d 995, 1013, 1014 n.17 (9th Cir. 2014) (ALJ erred where “[he] failed to 11 recognize that the opinions expressed in check-box form . . . were based on significant 12 experience with [claimant] and supported by numerous records, and were therefore entitled to 13 weight that an otherwise unsupported and unexplained check-box form would not merit”). 14 Dr. Fong also limited his opinion to his professional knowledge of Plaintiff’s conditions,
15 noting Plaintiff’s primary care provider could address back issues. AR 3020. Dr. Fong’s notes 16 in the longitudinal record support his opinion of Plaintiff’s difficulty with fatigue, as shown 17 above. Plaintiff complained of urinary frequency and difficulty sleeping as early as January 18 2020 and consistently after that despite receiving the highest possible dose of medication. AR 19 481, 2188. While the ALJ additionally found, without citation, that Dr. Fong’s opinion was 20 “inconsistent with the workup findings including remission of kidney cancer, with physical 21 examinations showing greater capability, and with the lack of pain observations by providers[,]” 22 AR 28, none of these findings contradict Plaintiff’s fatigue or urinary frequency. At the hearing, 23 the vocational expert (“VE”) testified that employers will only tolerate ten percent time off task 1 and one absence per month. AR 55. Accordingly, the improper evaluation of Dr. Fong’s 2 opinion that Plaintiff would be off task fifteen percent of the time and miss three days of work a 3 month was harmful. 4 Because the case must be remanded for the ALJ’s reconsideration of Dr. Fong’s opinion
5 evidence, potentially impacting the remainder of the ALJ’s decision, the Court need not address 6 Plaintiff’s other assignments of error. 7 CONCLUSION 8 For the reasons set forth above, the Commissioner’s final decision is REVERSED and 9 this case is REMANDED for further administrative proceedings under sentence four of 42 10 U.S.C. § 405(g). 11 Dated this 11th day of September, 2025. 12 13 A 14 S. KATE VAUGHAN United States Magistrate Judge 15 16 17 18 19 20 21 22 23