Mascarenas v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: July 6, 2022
• Docket: 2:21-cv-00641
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Johnie Ronald Mascarenas, No. CV-21-00641-PHX-SPL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff challenges the denial of his application for disability insurance benefits 16 under Title II of the Social Security Act (“the Act”) by Defendant, the Commissioner of 17 the Social Security Administration (“Commissioner” or “Defendant”). Plaintiff filed a 18 Complaint with this Court seeking judicial review of that denial (Doc. 1), and the Court 19 now addresses Plaintiff’s Opening Brief (Doc. 19, Pl. Br.), Defendant’s Answering Brief 20 (Doc. 20, Def. Br.), and Plaintiff’s Reply (Doc. 21, Reply). The Court has reviewed the 21 briefs and Administrative Record (Doc. 13, AR.) and now reverses the Administrative Law 22 Judge’s (“ALJ”) decision. 23 I. PROCEDURAL HISTORY 24 In September 2018, Plaintiff filed an application for disability insurance benefits 25 alleging disability beginning December 24, 2017. (AR. at 13.) The Social Security 26 Administration (“SSA”) denied Plaintiff’s application at the initial and reconsideration 27 levels of administrative review (AR. at 123-26, 133-36), and Plaintiff timely requested a 28 hearing before an ALJ. (AR. at 138-40.) The ALJ conducted a hearing on June 24, 2020. 1 (AR. at 35-68.) At that hearing, Plaintiff and vocational expert (“VE”) Cathleen Spencer 2 testified. On July 17, 2020, The ALJ issued an unfavorable decision. (AR. at 13-24.) In a 3 letter dated February 9, 2021, the Appeals Council denied review. (AR. at 1-6.) Plaintiff 4 then filed an action in this Court. (Doc. 1.) 5 II. THE SEQUENTIAL EVALUATION PROCESS AND JUDICIAL REVIEW 6 To determine whether a claimant is disabled for purposes of the Act, the ALJ 7 follows a five-step process. E.g., 20 C.F.R. § 404.1520(a)(4). The claimant bears the 8 burden of proof at the first four steps, but the burden shifts to the Commissioner at step 9 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 10 determines whether the claimant is engaging in substantial, gainful work activity. 20 C.F.R. 11 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 12 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 13 step three, the ALJ considers whether the claimant’s impairment or combination of 14 impairments meets or is medically equivalent to an impairment listed in Appendix 1 to 15 Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is 16 disabled. Id. If not, the analysis proceeds to step four, where the ALJ assesses the 17 claimant’s residual functional capacity (“RFC”) and determines whether the claimant is 18 still capable of performing his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the 19 claimant can perform his past relevant work, he is not disabled. Id. If he cannot, the analysis 20 proceeds to the fifth and final step, where the ALJ determines if the claimant can perform 21 any other work in the national economy based on his RFC, age, education, and work 22 experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant cannot, he is disabled. Id. 23 This Court may set aside the Commissioner’s disability determination only if the 24 determination is not supported by substantial evidence or is based on legal error. Orn v. 25 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, but 26 less than a preponderance; it is relevant evidence that a reasonable person might accept as 27 adequate to support a conclusion considering the record as a whole. Id. In determining 28 whether substantial evidence supports a decision, the court must consider the entire record 1 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 2 As a general rule, “[w]here the evidence is susceptible to more than one rational 3 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 4 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). In 5 determining whether to reverse an ALJ’s decision, the district court reviews only those 6 issues raised by the party challenging the decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 7 (9th Cir. 2001). 8 III. THE ALJ DECISION 9 The ALJ concluded Plaintiff had not engaged in disqualifying substantial, gainful 10 work activity during the relevant period, and that he suffered from medically-determinable, 11 severe impairments including cervical spondylosis, cervical disc disease, and lumbar facet 12 arthropathy. (AR. at 15-16.) The ALJ concluded Plaintiff had no impairment meeting or 13 medically equivalent to a listed impairment at step three. (AR. at 16.) The ALJ found 14 Plaintiff could perform medium work, including the ability to sit for six hours and stand or 15 walk for six hours; frequently climb ramps or stairs, balance, stoop, kneel, and crouch; 16 occasionally crawl; never climb, ladders, ropes, or scaffolds; and occasionally engage in 17 overhead reaching. (AR. at 17.) The ALJ found Plaintiff must avoid concentrated exposure 18 to extreme cold and exposure to dangerous machinery and unprotected heights. (AR. at 16- 19 17.) After summarizing the evidence, the ALJ concluded the opinions of Plaintiff’s treating 20 physicians and other providers, including his treating family doctor, Wendell Phillips, 21 D.O., were not persuasive. (AR. at 20-21.) The ALJ found the prior administrative medical 22 opinion from the reconsideration phase was persuasive. (AR. at 21-22.) The ALJ concluded 23 Plaintiff could perform his past relevant work and other jobs at step five. (AR. at 22-24.) 24 IV. DISCUSSION 25 Plaintiff presents one issue on appeal: whether the ALJ properly evaluated the 26 opinion of Dr. Wendell Phillips under the new regulations and created “a logical bridge 27 between the evidence and the resulting RFC.”1 (Pl. Br. at 1, 13.) Plaintiff argues the ALJ

28 1 Plaintiff frames the issue as follows: “The ALJ’s RFC determination is not supported by substantial evidence because she failed to properly evaluate the opinion evidence and failed 1 erred by finding Dr. Phillips’ opinion not persuasive and, as a result, that the RFC 2 determination is not supported by substantial evidence. (Pl. Br. at 13.) 3 A. New regulations governing the evaluation of opinion evidence. 4 In January 2017, the SSA amended the regulations concerning the evaluation of 5 medical opinion evidence. See Revisions to Rules Regarding Evaluation of Medical 6 Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017). Because the new regulations apply to 7 applications filed on or after March 27, 2017, they are applicable here.2 The new 8 regulations, which eliminate the previous hierarchy of medical opinions, provide in 9 relevant part as follows: 10 We will not defer or give any specific evidentiary weight, including 11 controlling weight, to any medical opinion(s) or prior administrative medical 12 finding(s), including those from your medical sources . . . . The most 13 important factors we consider when we evaluate the persuasiveness of 14 medical opinions and prior administrative medical findings are supportability 15 . . . and consistency . . . . 16 20 C.F.R. § 404.1520c(a). 17 Regarding the “supportability” factor, the new regulations explain that the “more 18 relevant the objective medical evidence and supporting explanations presented by a 19 medical source are to support his or her medical opinion(s), . . . the more persuasive the 20 medical opinions . . . will be.” Id. § 404.1520c(c)(1). Regarding the “consistency” factor, 21 the “more consistent a medical opinion(s) . . . is with the evidence from other medical 22 sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . 23 . . will be.” Id. § 404.1520c(c)(2) 24 Recently, the Ninth Circuit confirmed that the “changes to the Social Security 25 Administration’s regulations displace our longstanding case law requiring an ALJ to 26 to create a logical bridge between the evidence and the resulting RFC.” (Pl. Br. at 13.) 27 Plaintiff’s argument the RFC determination is deficient is predicated upon the ALJ’s consideration of Dr. Phillips’ opinion. (Pl. Br. at 13-20.) 28 2 Plaintiff filed in September 2018. (AR. at 13.) 1 provide ‘specific and legitimate’ reasons for rejecting an examining doctor’s opinion.” 2 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). Thus, “the former hierarchy of 3 medical opinions—in which we assign presumptive weight based on the extent of the 4 doctor’s relationship with the claimant—no longer applies. Now, an ALJ’s decision, 5 including the decision to discredit any medical opinion, must simply be supported by 6 substantial evidence.” Id. With that said, “[e]ven under the new regulations, an ALJ cannot 7 reject an examining or treating doctor’s opinion as unsupported or inconsistent without 8 providing an explanation supported by substantial evidence. The agency must articulate 9 how persuasive it finds all of the medical opinions from each doctor or other source and 10 explain how it considered the supportability and consistency factors in reaching these 11 findings.” Id. at 792 (cleaned up). 12 B. Dr. Phillips’ Opinion 13 On May 16, 2018, Plaintiff’s treating family physician, Dr. Wendell Phillips, 14 completed an assessment of Plaintiff’s workplace limitations. (AR. at 461-62.) Dr. Phillips 15 cited MRI findings of Plaintiff’s “head, neck, and brain,” and Plaintiff’s “constant 16 headaches.” (AR. at 461.) He indicated Plaintiff suffered from constant symptoms severe 17 enough to interfere with his ability to perform work-related tasks. (AR. at 461.) He stated 18 Plaintiff could sit for only three hours and stand or walk for only one hour combined in an 19 eight-hour workday. (AR. at 461.) He opined Plaintiff would need unscheduled twenty- 20 minute breaks every hour; that Plaintiff could never lift any weight; and that Plaintiff could 21 use his upper extremities for grasping, turning, twisting, fine manipulation, or reaching for 22 only about 5% of the time. (AR. at 461.) Dr. Phillips estimated Plaintiff would miss work 23 more than four times per month. (AR. at 462.) 24 In the decision, the ALJ deemed Dr. Phillips’ opinion unpersuasive. (AR. at 21.) 25 The ALJ concluded it was “inconsistent with and unsupported by the objective medical 26 evidence of record[,]” and that it “overestimate[d] the claimant’s limitations.” (AR. at 21.) 27 Although Dr. Phillips stated Plaintiff suffered from chronic headaches, the ALJ cited 28 Plaintiff’s testimony from the June 2020 hearing that he had not suffered any headaches 1 since 2018. (AR. at 21.) The ALJ also cited about a dozen “essentially normal” 2 examinations from the record. (AR. at 21.) 3 Plaintiff asserts the ALJ did not properly consider the supportability factor 4 prescribed in the regulations. (Pl. Br. at 16.) Plaintiff argues the ALJ failed to cite any 5 specific evidence, but instead offered only a conclusory finding that Dr. Phillips’ opinion 6 was unsupported by the objective evidence in the record. (Pl. Br. at 16.) Plaintiff asserts 7 the ALJ failed to “build an accurate and logical bridge” between the evidence and her 8 conclusions, and that the objective evidence does, in fact, support the limitations Dr. 9 Phillips assigned. (Pl. Br. at 16-17) (citations and quotations omitted). 10 Plaintiff also asserts “the ALJ provide[d] no analysis at all concerning consistency.” 11 (Pl. Br. at 17.) Plaintiff argues that the medical evidence—including the pain management 12 procedures for his chronic cervical and lumbar pain and the osteoarthritis in both his ankles 13 requiring surgical intervention on the right—was consistent with Dr. Phillips’ opinion.3 (Pl 14 Br. at 18.) Plaintiff also notes the ALJ failed to acknowledge the similarities between Dr. 15 Phillips’ opinion and that of Plaintiff’s treating chiropractor, Richard Campbell, D.C., who 16 also assigned limitations inconsistent with full-time, sustained work activity. (Pl. Br. at 18- 17 19.) 18 The Court finds the ALJ did not adequately explain how she considered the pertinent 19 factors. Woods 32 F. 4th at 792 (“The agency must ‘articulate . . . how persuasive’ it finds 20 ‘all of the medical opinions’ from each doctor or other source and ‘explain how [it] 21 considered the supportability and consistency factors’ in reaching these findings.”) 22 (alterations in original) (internal citations omitted). Although it is obvious the ALJ found 23 Dr. Phillips’ opinion to be inconsistent with the larger evidentiary record, the ALJ did not 24 articulate how she considered the supportability factor in her analysis. Id.; 20 C.F.R. § 25 404.1520c(b)(2) (“[W]e will explain how we considered the supportability and consistency 26 factors for a medical source’s medical opinions or prior administrative medical findings in 27 your determination or decision.”)

28 3 In July 2018, Plaintiff had right ankle surgery. (AR. at 719-21.) Plaintiff testified he lost his insurance and could not afford surgery on the left. (AR. at 50-51.) 1 Like in Woods, it appears the ALJ here used the terms “supported” and “consistent” 2 interchangeably, but “supportability” and “consistency” are terms of art under the 3 regulations. (AR. at 21) (“The undersigned considered the opinion of Dr. Phillips finding 4 [sic] inconsistent with and unsupported by the objective medical evidence of record.”); see 5 Woods, 32 F.4th at 793 n.4 (noting that the ALJ stated an examining doctor’s opinion was 6 “not supported by the record,” but inferring the ALJ intended to make a consistency 7 finding—i.e., that the doctor’s opinion was inconsistent with other evidence in the record). 8 In Woods, the Ninth Circuit affirmed the ALJ despite this error because the ALJ had not 9 challenged or disputed the supportability of that physician’s opinion, and because 10 substantial evidence corroborated the ALJ’s de facto consistency analysis. See Woods, 32 11 F.4th at 792-93, 793 n.4. Here, the ALJ’s consistency finding is supported by substantial 12 evidence, but she made no finding addressing the supportability of Dr. Phillips’ opinion. 13 The Court addresses the ALJ’s analysis of the two factors, or lack thereof, in turn. 14 i. Consistency 15 Proper analysis of the consistency factor requires the ALJ to evaluate the extent to 16 which Dr. Phillips’ opinion is consistent with the medical or nonmedical evidence 17 elsewhere in the record. See 20 C.F.R. § 404.1520c(c)(2) (“The more consistent a medical 18 opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in 19 the claim, the more persuasive the medical opinion(s) . . . will be.”). In her decision, the 20 ALJ first cited inconsistencies between Plaintiff’s own testimony and Dr. Phillips’ opinion. 21 Plaintiff testified he has not experienced headaches since 2018, but that his 22 medication induces sleepiness. (AR. at 55.) The limitations Dr. Phillips assigned appear to 23 be based, to some extent, on Plaintiff’s “constant headaches.” (AR. at 461.) Because Dr. 24 Phillips completed his assessment in 2018, however, there is no apparent inconsistency 25 between that assessment and Plaintiff’s testimony that he suffered headaches at that time 26 (AR. at 55, 462); Plaintiff’s testimony is inconsistent with the notion that he experienced 27 disabling headaches beyond that point, but it’s also not clear that Plaintiff’s headaches were 28 the exclusive basis for the limitations Dr. Phillips assigned. 1 Dr. Phillips’ treating note dated the same day as his assessment documents 2 Plaintiff’s ongoing chronic neck pain, his referral to specialists, his recommended course 3 of cervical injections, and his diagnoses of cervical stenosis and radiculopathy. (AR. at 4 960.) The April 2018 cervical MRI—which Dr. Phillips ordered (AR. at 376)—revealed 5 cervical foraminal stenoses ranging from mild to high-grade. (AR. at 752.) Dr. Phillips’ 6 other treatment notes document Plaintiff’s symptoms beyond headaches, including chronic 7 neck pain, numbness in his fingers, and tingling in his arms. (AR. at 375, 381, 655.) In 8 sum, it cannot be said that Dr. Phillips’ limitations were based exclusively on Plaintiff’s 9 headaches (which apparently resolved, according to his testimony); therefore, the Court 10 finds substantial evidence from the record does not support this rationale. 11 Importantly, however, the ALJ also cited a dozen specific pages of evidence that 12 Plaintiff’s clinical examinations were often “essentially normal.” (AR. at 21.) There is 13 substantial evidence indicating that while Plaintiff exhibited some tenderness, facet 14 loading, or other clinical signs on some occasions, he also displayed full motor strength, a 15 normal gait, intact sensation, and full range of motion on those or other occasions. (AR. at 16 853, 860, 867, 1142, 1220, 2328.) A few positive clinical findings aside, the ALJ 17 characterized these examinations as “essentially normal.” (AR. at 21.) Under these 18 circumstances, the Court will not disturb that finding. Thomas, 278 F.3d at 954 (“Where 19 the evidence is susceptible to more than one rational interpretation, one of which supports 20 the ALJ’s decision, the ALJ’s conclusion must be upheld.”). 21 Plaintiff also argues the ALJ erred by “fail[ing] to reconcile” Dr. Phillips’ opinion 22 with that of Plaintiff’s chiropractor, Richard Campbell, D.C., who also assigned disabling 23 limitations in a separate assessment. (Pl. Br. at 18.) In fact, the ALJ did separately address 24 Dr. Campbell’s opinion and found it unpersuasive, again citing normal examinations. (AR. 25 at 20-21.) Plaintiff offers no support for the proposition an ALJ must compare and contrast 26 each medical opinion with every other opinion in the file to meet her burden with respect 27 to the consistency factor. See 20 C.F.R. § 404.1520c(c)(2). Recent Ninth Circuit precedent 28 instructs that an ALJ need only explain whether or to what extent Dr. Phillips’ opinion is 1 consistent with evidence from other medical or nonmedical sources in a manner supported 2 by substantial evidence. Woods, 32 F.4th at 792. Again, the ALJ cited evidence of 3 “essentially normal” clinical examinations, and there is substantial evidence in the record 4 to support that rationale. Consequently, the ALJ met her burden with respect to the 5 consistency factor. 6 ii. Supportability 7 Plaintiff further argues the ALJ did not cite specific objective evidence in her 8 explanation of the supportability factor and “fail[ed] to create a logical bridge between the 9 evidence and her determination.” (Pl. Br. at 16.) This Court agrees. As the Ninth Circuit 10 stated in Woods, “[s]upportability means the extent to which a medical source supports the 11 medical opinion by explaining the relevant objective medical evidence.” Woods, 32 F.4th 12 at 791-92 (alterations omitted). The supportability factor, as this Court understands it, goes 13 directly to whether, or to what extent, the source explained his opinion or conclusions by 14 providing or citing objective supporting evidence. Id. The ALJ here did not explicitly 15 address the supportability factor. She was required to. 20 C.F.R. § 404.1520c(b)(2) (“[W]e 16 will explain how we considered the supportability and consistency factors for a medical 17 source's medical opinions or prior administrative medical findings in your determination 18 or decision.”). 19 The Court notes that while Dr. Phillips’ assessment consists mostly of check marks 20 in various boxes and columns, he did cite diagnostic imaging (AR. at 461) and the record 21 contains his treatment visits and examinations.4 (AR. at 375-76, 381-83, 541-43, 655-57, 22 958-60, 1266-69.) Defendant argues the ALJ evaluated Dr. Phillips’ treatment notes, and 23 that there is no requirement that the ALJ discuss those notes in the context of the assessment 24 at issue. (Def. Br. at 12-13.) While it is true the Court is empowered to draw reasonable 25 inferences when they are there to be drawn, see Magallanes v. Bowen, 881 F.2d 747, 755 26 (9th Cir. 1989), that is not appropriate here. The ALJ summarized evidence from the record 27 and applied it to Dr. Phillips’ assessment (AR. at 21), but that goes to the consistency of

28 4 The Court makes no finding as to whether this evidence actually supports the limitations Dr. Phillips assigned. 1 his opinion, not the supportability of it. See 20 C.F.R. § 404.1520c(c)(1)-(2). This Court is 2 “constrained to review the reasons the ALJ asserts.” Brown-Hunter v. Colvin, 806 F.3d 3 487, 494 (9th Cir. 2015) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.2003)). 4 Here, it appears the ALJ conflated “supportability” with “consistency,” and only provided 5 an explanation for how she considered the latter. (AR. at 21.) The ALJ’s conclusion Dr. 6 Phillips’ opinion is “unsupported by the objective medical evidence of record” falls 7 decidedly short of the requirement that the ALJ explain how she considered the 8 supportability of Dr. Phillips’ opinion—i.e., the extent to which Dr. Phillips provided 9 objective support for his conclusions. 10 The ALJ’s burden is to explain how she considered the medical opinion’s 11 supportability and consistency in a manner grounded in substantial evidence. Woods, 32 12 F.4th at 792. “Under the substantial-evidence standard, we look to the existing 13 administrative record and ask whether it contains sufficient evidence to support the 14 agency’s factual determinations.” Id. at 788 (internal citations omitted) (citing Biestek v. 15 Berryhill, ––– U.S. ––––, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019). Here, the ALJ 16 cited inconsistencies between Dr. Phillips’ opinion, Plaintiff’s testimony, and examinations 17 which reinforced her opinion Dr. Phillips’ report was unpersuasive, but the ALJ did not 18 adequately address the degree to which Dr. Phillips supported his own opinion in his 19 treatment notes or with other objective evidence. Consistent with the Ninth Circuit’s 20 holding in Woods, this Court reverses the ALJ decision. In its discretion, the Court remands 21 for further proceedings consistent with this opinion. See Garrison v. Colvin, 759 F.3d 995, 22 1021 (9th Cir. 2014) (The Court has “flexibility to remand for further proceedings when 23 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled 24 within the meaning of the Social Security Act.”). 25 /// 26 /// 27 /// 28 /// 1 IT IS THEREFORE ORDERED reversing the decision of the Commissioner of 2|| Social Security (AR. at 13-24) and remanding for further proceedings consistent with this 3 || opinion. 4 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. 5 Dated this 6th day of July, 2022. 6

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