Masterson v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: September 19, 2024
• Docket: 2:23-cv-01848
• Status: Unknown

Opinion

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

9 Angela D Masterson, No. CV-23-01848-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff challenges the denial of her application for benefits under the Social 16 Security Act (“the Act”) by the Commissioner of the Social Security Administration 17 (“Commissioner”). The Court has reviewed Plaintiff’s opening brief (Doc. 13), the 18 Commissioner’s answering brief (Doc. 17), and Plaintiff’s reply (Doc. 18), as well as the 19 Administrative Record (Docs. 8-10, “AR”), and now reverses the Administrative Law 20 Judge’s (“ALJ”) decision and remands for further proceedings. 21 I. Procedural History 22 Plaintiff filed an application for benefits on February 15, 2021, alleging disability 23 beginning on January 7, 2021. (AR at 17.)1 The Social Security Administration (“SSA”) 24 denied Plaintiff’s application at the initial and reconsideration levels. (Id.) On March 29, 25 2023, following a video hearing, the ALJ issued an unfavorable decision. (Id. at 17-35.) 26 1 On January 7, 2021, an ALJ denied an earlier application for disability benefits filed 27 by Plaintiff. (AR at 104-14.) Such a denial gives rise to a presumption of continuing non- disability on a subsequent application unless the claimant can show changed circumstances 28 indicating a greater disability. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). The ALJ concluded that Plaintiff made such a showing here. (AR at 18.) 1 The Appeals Council later denied review. (Id. at 1-3.) 2 II. The Sequential Evaluation Process and Judicial Review 3 To determine whether a claimant is disabled for purposes of the Act, the ALJ 4 follows a five-step process. 20 C.F.R. § 416.920(a). The claimant bears the burden of 5 proof at the first four steps, but the burden shifts to the Commissioner at step five. Tackett 6 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 7 the claimant has engaged in substantial, gainful work activity. 20 C.F.R. 8 § 416.920(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 9 medically determinable physical or mental impairment. Id. § 416.920(a)(4)(ii). At step 10 three, the ALJ considers whether the claimant’s impairment or combination of impairments 11 meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. 12 Part 404. Id. § 416.920(a)(4)(iii). If so, the claimant is disabled. Id. If not, the ALJ 13 assesses the claimant’s residual functional capacity (“RFC”) and proceeds to step four, 14 where the ALJ determines whether the claimant is still capable of performing past relevant 15 work. Id. § 416.920(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where 16 the ALJ determines whether the claimant can perform any other work in the national 17 economy based on the claimant’s RFC, age, education, and work experience. Id. 18 § 416.920(a)(4)(v). If not, the claimant is disabled. Id. 19 “On judicial review, an ALJ’s factual findings . . . shall be conclusive if supported 20 by substantial evidence.” Biestek v. Berryhill, 587 U.S. 97, 102 (2019) (cleaned up). The 21 Court may set aside the Commissioner’s disability determination only if it is not supported 22 by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th 23 Cir. 2007). Substantial evidence is relevant evidence that a reasonable person might accept 24 as adequate to support a conclusion considering the record as a whole. Id. Generally, 25 “[w]here the evidence is susceptible to more than one rational interpretation, one of which 26 supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 27 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). In deciding whether to reverse an 28 ALJ’s decision, the district court reviews only those issues raised by the party challenging 1 the decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 2 III. The ALJ’s Decision 3 The ALJ concluded that Plaintiff had not engaged in substantial, gainful work 4 activity since the alleged onset date and that Plaintiff had the following severe impairments: 5 “degenerative changes of the spine; rheumatoid arthritis; idiopathic neuropathy; mild 6 carpal tunnel syndrome; headaches; obesity; anxiety; depression; and post-traumatic stress 7 disorder (PTSD).” (AR at 20.)2 Next, the ALJ concluded that Plaintiff’s impairments did 8 not meet or medically equal a listing. (Id. at 20-23.) Next, the ALJ calculated Plaintiff’s 9 RFC as follows: 10 [T]he claimant had the residual functional capacity (RFC) to perform light 11 work as defined in 20 CFR 404.1567(b). She could lift/carry 20 pounds occasionally and ten pounds frequently; sit for six hours in an eight-hour day 12 and stand/walk for six hours in an eight-hour day; she should never climb 13 ropes, ladders or scaffolds or crawl; she could frequently balance; she could occasionally climb ramps and stairs, stoop, kneel, and crouch; she should 14 avoid concentrated exposure to temperature extremes, loud noise, unprotected heights, and moving and dangerous machinery; she could 15 frequently perform fingering bilaterally; she was able to understand, 16 remember, and carry out simple instructions and tasks; she could respond appropriately to supervisors and co-workers in a task-oriented setting where 17 contact with others was no more than occasional; and she should not work in 18 a setting that included constant/regular public contact or more than occasional handling of customer complaints. 19 20 (Id. at 23.) 21 As part of this RFC determination, the ALJ evaluated Plaintiff’s symptom 22 testimony, concluding that Plaintiff’s “statements concerning the intensity, persistence and 23 limiting effects of [her] symptoms were not entirely consistent with the medical evidence 24 and other evidence in the record for the reasons explained in this decision.” (Id. at 23-28.)3 25 2 The ALJ also determined that Plaintiff had the non-severe impairments of “mild 26 degenerative changes of the left ankle, GERD/heartburn/acid reflux, and anemia” and that although Plaintiff “allege[d] fibromyalgia,” it “was not a medically determinable 27 impairment.” (AR at 20.) 28 3 Plaintiff does not challenge, in this appeal, the ALJ’s decision to discredit her symptom testimony. 1 The ALJ also evaluated opinion evidence from 11 different medical sources, 2 concluding as follows: (1) Andrew Sharobeem, D.O., treating rheumatologist (“not 3 persuasive”); (2) Michael Albertson, PA-C, treating source (“unpersuasive”); (3) James 4 Beach, D.O., treating physician (“not persuasive”); (4) Dr. Gordon, consultative examiner 5 (“only partially persuasive”); (5) Dr. Andersen, consultative examiner (“partially 6 persuasive”); (6) Dr. Farrah Hauke, consultative examiner (“persuasive”); (7) Nadine 7 Apostu, PA-C, treating source (“unpersuasive”); (8) Dane Higgins, Ph.D., independent 8 neuropsychological examiner (“otherwise minimally persuasive”); (9) Rosalia Pereyra, 9 Psy.D., state agency consultant (“persuasive”); (10) George W. Stern, Ph.D., state agency 10 consultant (“not persuasive”); (11) Gary Smith, M.D., state agency consultant (“less 11 persuasive”); and (11) Robert Hughes, M.D., state agency consultant (“persuasive”). (Id. 12 at 28-32.) 13 Based on the testimony of a vocational expert (“VE”), the ALJ concluded that 14 although Plaintiff could not perform her past relevant work as a phlebotomist, she is 15 capable of performing three other jobs that exist in significant numbers in the national 16 economy: (1) cleaner, (2) marker, and (3) router. (Id. at 32-33.) Thus, the ALJ concluded 17 that Plaintiff is not disabled. (Id. at 33-34.) 18 IV. Discussion 19 Plaintiff raises three issues on appeal: (1) whether the ALJ failed to provide legally 20 sufficient reasons for rejecting the opinions of Dr. Andersen; (2) whether the ALJ failed to 21 provide legally sufficient reasons for rejecting the opinions of Dr. Huggins; and (3) whether 22 the ALJ failed to provide legally sufficient reasons for rejecting the opinions of PA-C 23 Albertson. (Doc. 13 at 1.) As a remedy, Plaintiff seeks a “[r]emand for calculation of 24 benefits. . . . Only in the alternative should this Court remand for further administrative 25 proceedings.” (Id. at 25.) 26 … 27 … 28 … 1 A. Dr. Andersen 2 1. Standard Of Review 3 In January 2017, the SSA amended the regulations concerning the evaluation of 4 medical opinion evidence. See Revisions to Rules Regarding Evaluation of Medical 5 Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). The new regulations apply to applications 6 filed on or after March 27, 2017, and are therefore applicable here. The new regulations 7 provide in relevant part as follows: 8 We will not defer or give any specific evidentiary weight, including 9 controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources. . . . The most 10 important factors we consider when we evaluate the persuasiveness of 11 medical opinions and prior administrative medical findings are supportability . . . and consistency . . . . 12 13 20 C.F.R. § 416.920c(a). Regarding the “supportability” factor, the new regulations 14 explain that the “more relevant the objective medical evidence and supporting explanations 15 presented by a medical source are to support his or her medical opinion(s), . . . the more 16 persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). Regarding the 17 “consistency” factor, the “more consistent a medical opinion(s) . . . is with the evidence 18 from other medical sources and nonmedical sources in the claim, the more persuasive the 19 medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2).4 20 The Ninth Circuit has confirmed that the “recent changes to the Social Security 21 Administration’s regulations displace our longstanding case law requiring an ALJ to 22 provide ‘specific and legitimate’ reasons for rejecting an examining doctor’s opinion.” 23 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). Thus, “the former hierarchy of 24 medical opinions—in which we assign presumptive weight based on the extent of the 25 doctor’s relationship with the claimant—no longer applies. Now, an ALJ’s decision, 26

27 4 Other factors that may be considered by the ALJ in addition to supportability and consistency include the provider’s relationship with the claimant, the length of the 28 treatment relationship, the frequency of examinations, the purpose and extent of the treatment relationship, and the specialization of the provider. Id. § 416.920c(c). 1 including the decision to discredit any medical opinion, must simply be supported by 2 substantial evidence.” Id. With that said, “[e]ven under the new regulations, an ALJ cannot 3 reject an examining or treating doctor’s opinion as unsupported or inconsistent without 4 providing an explanation supported by substantial evidence. The agency must articulate 5 how persuasive it finds all of the medical opinions from each doctor or other source and 6 explain how it considered the supportability and consistency factors in reaching these 7 findings.” Id. at 792 (cleaned up). Although “an ALJ can still consider the length and 8 purpose of the treatment relationship, the frequency of examinations, the kinds and extent 9 of examinations that the medical source has performed or ordered from specialists, and 10 whether the medical source has examined the claimant or merely reviewed the claimant’s 11 records. . . . [t]he ALJ no longer needs to make specific findings regarding these 12 relationship factors . . . .” Id. (citation omitted). 13 2. Dr. Andersen’s Opinions 14 On December 17, 2021, Dr. Andersen performed a psychiatric examination of 15 Plaintiff. (AR at 1184.) Afterward, Dr. Andersen issued a report entitled “Psychological 16 Report.” (Id. at 1184-89.) In the report, Dr. Andersen began by summarizing the records 17 he had reviewed; Plaintiff’s chief complaints; Plaintiff’s history of mental health issues; 18 Plaintiff’s treatment, occupational, cultural, educational, social, and medical history; 19 Plaintiff’s activities of daily living; and Plaintiff’s criminal and substance abuse history. 20 (Id. at 1184-87.) Next, Dr. Andersen described his observations of Plaintiff during the 21 examination. (Id. at 1187.) Next, Dr. Andersen summarized the results of a mini-mental 22 status examination (“MMSE”) he administered. (Id. at 1187-88.) Next, Dr. Andersen 23 provided a diagnostic summary. (Id. at 1188.) Finally, under the headings “Prognosis” 24 and “Capability,” Dr. Andersen wrote: 25 Her condition is considered to be chronic. She is being treated with 26 medication and psychotherapy for her mood; however, she continues having significant emotional symptoms (e.g., crying spells on a nearly daily basis). 27 She is not capable of handling awarded benefits in a responsible manner that 28 would be in her best interest. Specifically, she lacks task initiation, and I would be concerned with her ability to pay bills on-time (as she even lacks 1 motivation to eat as evidenced by eating only 1 meal per day) and the organizational aspect of managing her finances. 2 3 (Id. at 1188-89.) 4 Separately, Dr. Anderson completed a form entitled “Psychological/Psychiatric 5 Medical Source Statement” in which he evaluated Plaintiff’s functional capacity in four 6 areas. (Id. at 1190-91.) First, as for “Understanding and Memory,” Dr. Andersen wrote: 7 “Ms. Masterson’s remote history appears intact; however, she was able to recall only 2 of 8 3 words following a brief distraction on the MMSE. Short term memory problems (i.e., 9 the ability to remember work-like instructions) are common in individuals with bipolar 10 disorder and PTSD, both of which Ms. Masterson’s has. She is likely prone to 11 forgetfulness and making mistakes due to her pronounced emotional symptoms. 12 Otherwise, she appears to have the ability to remember instruction.” (Id. at 1190.) Second, 13 as for “Sustained Concentration and Persistence,” Dr. Andersen wrote: “Ms. Masterson’s 14 attention/concentration will likely be fleeting in conjunction with her emotional symptoms. 15 There was no evidence of attention/concentration problems during the exam; however, the 16 psychological exam took place in a relaxed, relatively distraction-free environment. In a 17 stressful or distracting environment, she is prone to concentration problems. In addition, 18 she lacks task initiation, which is common in depressed individuals, and I would be 19 concerned with her ability to consistently carry out tasks without any oversight.” (Id.) 20 Third, as for “Social Interaction,” Dr. Andersen wrote: “Ms. Masterson has a longstanding 21 history of conflicts with co-workers and supervisors. She reported that she was frequently 22 on the verge of physical altercations with others; she once needed to be restrained by a co- 23 worker from fighting with a supervisor. Irritability is a common symptom of depression 24 (and she has bipolar II disorder which is marked by a depressive episode), but also, she has 25 a longstanding history of abuse (including physical abuse), and her way of responding to 26 conflict (e.g., fighting) may stem from her abusive past. She bathes on a regular basis and 27 should be able to adhere to basic standards of neatness and cleanliness.” (Id. at 1191.) 28 Fourth, as for “Adapting to Change,” Dr. Andersen wrote: “Ms. Masterson would likely 1 have significant difficulty responding appropriately to change in her work setting. Change 2 frequently bring stress and stress can exacerbate emotional symptoms and Ms. Masterson’s 3 emotional distress is also high. She also has a tendency to become 4 confrontational/aggressive in stressful situations (as evidence by her conflict with others at 5 work) or will likely ‘give up’ and not perform tasks due to her depression. Otherwise, she 6 can likely recognize normal hazards.” (Id.) 7 3. The ALJ’s Evaluation Of Dr. Andersen’s Opinions 8 As noted, the ALJ deemed Dr. Andersen’s opinions “partially persuasive.” (Id. at 9 29.) The ALJ’s full rationale was as follows: 10 Dr. Andersen performed a consultative psychological evaluation on 11 December 17, 2021 and diagnosed bipolar disorder, current or most recent episode depressed, and PTSD. Dr. Andersen opined claimant could 12 remember instructions but that she was likely prone to forgetfulness and 13 making mistakes due to her pronounced emotional symptoms. He indicated she would have difficulty maintaining concentration and initiating and 14 completing tasks consistently without oversight due to her depression and emotional symptoms. Dr. Andersen also said that, based on claimant’s 15 reports of difficulty with some supervisors and others in the past and 16 considering her PTSD symptoms, she might have difficulty responding to conflict, but he noted she maintained good personal hygiene. He also said 17 she would likely have significant difficulty adapting to change appropriately 18 due to limited stress tolerance, but that she could recognize normal hazards. 19 [¶] This opinion was partially persuasive based on its consistency with the 20 medical evidence regarding claimant’s mental impairments. However, Dr. Andersen’s functional assessment was vague and inconsistent with 21 claimant’s significant daily activities. He stated that she was not capable of handling her own funds but claimant indicated in the record that she handled 22 her own finances and bills independently. Claimant has otherwise not 23 exhibited “pronounced emotional symptoms” consistently in the record, as asserted by Dr. Andersen. Claimant has shown depressive and other signs 24 and symptoms in the record, but the evidence did not support any further 25 limitations not outlined in the residual functional capacity evaluation adopted herein. Dr. Andersen placed too much reliance upon the subjective reports 26 of the claimant. His conclusions were inconsistent with the claimant’s score 27 of 28 out of 30 in the mini mental status examination. His conclusions were also inconsistent with the treatment records that characterized the claimant’s 28 psychological impairments as mild as well as the claimant’s denial of anxiety 1 and depression. 2 (Id., citations omitted.) 3 4. The Parties’ Arguments 4 Plaintiff argues that the ALJ’s evaluation of Dr. Andersen’s opinions was flawed 5 because (1) the ALJ “did not specify which parts of Dr. Andersen’s assessment the ALJ 6 thought were consistent with the evidence”; (2) the ALJ “did not cite to the record in 7 support of” the conclusion that Dr. Andersen’s findings were vague and inconsistent with 8 Plaintiff’s daily activities; (3) at any rate, Plaintiff’s statements in her function report 9 concerning her ability to pay bills were “not inconsistent with Dr. Andersen’s opinion”; (4) 10 the ALJ “did not explain which of [Plaintiff’s] daily activities were inconsistent with what 11 in Dr. Andersen’s assessment,” and at a minimum “failed to show . . . that a substantial 12 part of a typical day was spent engaged in activities inconsistent with disabling 13 limitations”; (5) the ALJ did not cite any material in the record to support the ALJ’s 14 determination that Plaintiff failed to consistently exhibit pronounced emotional symptoms, 15 and in fact that conclusion was “inconsistent with a plain reading of [Plaintiff’s] treatment 16 records”; (6) the ALJ improperly found that Dr. Anderson placed too much reliance on 17 Plaintiff’s subjective reports, because Dr. Anderson found her reports to be credible and 18 the Ninth Circuit has held that psychiatrists may rely on credible subjective reports; (7) the 19 ALJ placed undue reliance on the results of the MMSE, even though the “findings during 20 such a limited examination . . . [d]o not account for the overall severity of [Plaintiff’s] 21 condition” and only measure cognitive impairment, not affective impairment; (8) the ALJ 22 provided an imprecise “citation to entire exhibits with hundreds of pages of records” in an 23 attempt to show that Dr. Anderson’s findings were inconsistent with Plaintiff’s treatment 24 records; and (9) the ALJ improperly found a conflict between Dr. Andersen’s opinions and 25 Plaintiff’s denial of anxiety and depression during two treatment visits, because those visits 26 were only for rheumatology. (Doc. 13 at 12-17.) 27 In response, the Commissioner defends the sufficiency of the ALJ’s rationale for 28 1 discrediting Dr. Andersen’s opinions. (Doc. 17 at 7-13.) First, the Commissioner argues 2 that the ALJ permissibly discredited Dr. Andersen’s opinions pursuant to the supportability 3 factor because (1) they were expressed in vague qualifiers such as “limited” or “fair” or 4 “likely”; (2) they were inconsistent with Dr. Andersen’s notes and examination results; and 5 (3) they were overly reliant on Plaintiff’s subjective complaints. (Id. at 8-10.) Second, the 6 Commissioner argues that the ALJ permissibly discredited Dr. Andersen’s opinions 7 pursuant to the consistency factor because (1) Dr. Anderson’s opinion that Plaintiff was 8 incapable of handling her own funds was inconsistent with Plaintiff’s repeated statements 9 that she was able to handle her own finances; and (2) Dr. Andersen’s opinions were 10 inconsistent with the treatment records describing Plaintiff’s psychological impairments as 11 mild. (Id. at 10-13.) 12 In reply, Plaintiff accuses the Commissioner of improperly attempting to supply 13 new post hoc rationales for discrediting Dr. Andersen’s opinions; argues that the 14 Commissioner’s discussion of Plaintiff’s ability to pay attention during the examination 15 “omits important context”—namely, Dr. Andersen’s observation that Plaintiff would be 16 more prone to concentration problems in a more stressful environment; and argues that the 17 Commissioner simply repeats certain of the ALJ’s rationales without defending them. 18 (Doc. 18 at 4-5.) 19 5. Analysis 20 The ALJ’s evaluation of Dr. Andersen’s opinions was free of harmful error. As 21 noted, “[t]he agency must articulate how persuasive it finds all of the medical opinions 22 from each doctor or other source and explain how it considered the supportability and 23 consistency factors in reaching these findings.” Woods, 32 F.4th at 792 (cleaned up). Here, 24 the ALJ considered both factors in relation to Dr. Andersen. (AR at 29.) 25 The ALJ’s conclusion as to each factor was also supported by substantial evidence. 26 One of the ALJ’s proffered reasons for discounting Dr. Andersen’s opinions pursuant to 27 the supportability factor was that they were “inconsistent with [Plaintiff’s] score of 28 out 28 of 30 in the mini mental status examination.” (AR at 29.) This conclusion was permissible. 1 As Dr. Andersen acknowledged, one purpose of an MMSE is to measure the patient’s 2 ability to sustain attention and concentration. (Id. at 1187 [“The mini-mental status exam 3 . . . is used as a brief screening for orientation . . . [and] attention . . . .”].)5 Plaintiff scored 4 a 28/30 on the MMSE and Dr. Anderson acknowledged that “[t]here was no evidence of 5 attention/concentration problems during the exam,” yet Dr. Andersen still concluded that 6 Plaintiff’s “attention/concentration will likely be fleeting in conjunction with her emotional 7 symptoms.” (Id. at 1190.) It was rational for the ALJ to conclude that Dr. Andersen’s 8 opinion regarding Plaintiff’s inability to sustain attention and concentration6 was not 9 supported by his examination results and clinical observations. Cf. Waldram v. Kijakazi, 10 2023 WL 8433769, *1 (9th Cir. 2023) (“Dr. Cavenee found that Waldram had a moderate 11 limitation on . . . persisting in tasks by following short and simple instructions. But Dr. 12 Cavenee’s exam showed that Waldram’s . . . concentration . . . [was] within normal limits. 13 Moreover, Waldram scored a 30/30 on a ‘mental status’ exam . . . . Therefore, substantial 14 evidence supports the ALJ’s determination that the relevant objective medical evidence 15 from Dr. Cavenee’s examination did not support his proposed mental limitations.”). 16 The Court acknowledges that Dr. Andersen sought to explain why he believed the 17 MMSE results and his clinical observations were not a good proxy for Plaintiff’s ability to 18 sustain attention and concentration in a work environment. (AR at 1190 [“There was no 19 evidence of attention/concentration problems during the exam; however, the psychological 20 exam took place in a relaxed, relatively distraction-free environment. In a stressful or 21 distracting environment, she is prone to concentration problems.”].) But under the 22

23 5 See generally Carter v. Kijakazi, 2023 WL 2967429, *8 n.14 (W.D. Va. 2023) (“The MMSE is an 11-question measure that tests seven areas of cognitive function: orientation, 24 registration, attention and calculation, recall, language and visual construction. The maximum score is 30. A score of 24 or more is indicative of no cognitive impairment.”). 25 6 Plaintiff’s contention that the ALJ did not actually discount Dr. Andersen’s opinions on this basis, which Plaintiff characterizes as a post hoc rationalization offered by the 26 Commissioner (Doc. 18 at 4), is unavailing. The ALJ specifically stated that Plaintiff’s “score of 28 out of 30 in the mini mental status examination” was “inconsistent” with Dr. 27 Andersen’s “conclusions,” which the ALJ summarized a few sentences earlier as including the opinion that Plaintiff “would have difficulty maintaining concentration and initiating 28 and completing tasks consistently without oversight due to her depression and emotional symptoms.” (AR at 29.) 1 applicable standard of review, the Court is not tasked with deciding whether it agrees with 2 Dr. Andersen’s explanation. Instead, the limited question is whether it was rational for the 3 ALJ to find Dr. Andersen’s explanation unpersuasive due to a lack of support in Dr. 4 Andersen’s testing results and clinical observations: “Where the evidence is susceptible to 5 more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 6 conclusion must be upheld.” Thomas, 278 F.3d at 954. See also Ghanim v. Colvin, 763 7 F.3d 1154, 1163 (9th Cir. 2014) (“When evidence reasonably supports either confirming 8 or reversing the ALJ’s decision, we may not substitute our judgment for that of the ALJ.”). 9 It was rational for the ALJ to reach that conclusion here. See, e.g., Lacy v. Comm’r of Soc. 10 Sec. Admin., 2023 WL 2624459, *7 (D. Ariz. 2023) (“Plaintiff also argues that her MMSE 11 result does not ‘invalidate Dr. Nolan’s assessment’ because her ability to successfully 12 complete an MMSE may not be transferable to a work setting, and therefore does not 13 necessarily demonstrate that she can complete tasks in the context of regular employment. 14 This argument misses the mark.”); Scott P. v. Kijakazi, 2022 WL 2047694, *8 (D. Idaho 15 2022) (“[I]t was not unreasonable for the ALJ to reject Dr. Sarff’s medical opinion on the 16 basis that the mental status exam did not clearly reveal ‘intermittent severe impairment’ in 17 the areas of concentration, ability to interact with co-workers and supervisors, and mood.”); 18 Benear v. Comm’r of Soc. Sec. Admin., 2019 WL 258345, *7 n.6 (D. Ariz. 2019) (rejecting 19 claimant’s argument that “the ALJ’s reliance on Plaintiff’s mini mental status examination 20 is inappropriate because an MMSE . . . does not demonstrate a lack of concentration deficits 21 due to depression and anxiety” and noting that “MMSEs are consistently used to evaluate 22 the concentration, persistence, and pace of claimants’ mental impairments”) (cleaned up).7 23 Turning to the consistency factor, the ALJ concluded, inter alia, that Dr. Andersen’s 24 opinion that Plaintiff “was not capable of handling her own funds” was inconsistent with 25 the evidence that Plaintiff “indicated . . . that she handled her own finances and bills 26 independently.” (AR at 29.) This conclusion is supported by substantial evidence. In the 27 7 Given this conclusion, it is unnecessary to resolve Plaintiff’s challenges to the ALJ’s 28 other proffered reasons for discounting Dr. Andersen’s opinions pursuant to the supportability factor. 1 “Capability” section of his report, Dr. Anderson wrote that Plaintiff “is not capable of 2 handling awarded benefits in a responsible manner that would be in her best interest” in 3 part because “she lacks task initiation, and I would be concerned with her ability to pay 4 bills on-time . . . and the organizational aspect of managing her finances.” (Id. at 1189.) 5 However, in her function report, Plaintiff checked boxes indicating that she is able to pay 6 her bills, count change, handle a savings account, and use a checkbook/money order. (Id. 7 at 341.) Additionally, Plaintiff “denie[d] difficulties with . . . managing her finances” 8 during an array of medical appointments. (See, e.g., id. at 1385, 1719, 1774.) It was 9 rational for the ALJ to conclude that these statements were inconsistent with Dr. 10 Andersen’s opinion regarding Plaintiff’s ability to manage her finances.8 11 B. Dr. Higgins 12 1. Standard Of Review 13 The ALJ’s evaluation of Dr. Higgins’s opinions is subject to the same standard of 14 review, set forth in Part IV.A.1 above, that governs the ALJ’s evaluation of Dr. Andersen’s 15 opinions. 16 2. Dr. Higgins’s Opinions 17 In the fall of 2022, Dr. Higgins interviewed Plaintiff, conducted various tests, and 18 then issued a report entitled “Neuropsychological Evaluation.” (AR at 2263-68.) Dr. 19 Higgins also attached various reports and testing data to the evaluation. (Id. at 2269-96.) 20 As relevant here, in paragraph 13 of the evaluation form, Dr. Higgins provided the 21 following assessment of Plaintiff’s functional capabilities: 22 Based on the results of this evaluation, Ms. Masterson would experience 23 significant difficulty completing basic tasks associated with typical job duties, as well as complex tasks (i.e., those found in a typical work setting). 24 From a neurocognitive perspective, based on her performance on 25 neuropsychological tests, one would expect her to experience significant difficulty in a work setting. She would experience significant difficulty 26 learning new skills and completing key tasks typical of a work setting. Her 27 8 Given this conclusion, it is unnecessary to resolve Plaintiff’s challenges to the ALJ’s 28 other proffered reasons for discounting Dr. Andersen’s opinions pursuant to the consistency factor. 1 ability to learn new information is impaired when it is presented via a visual information modality. Many job skills are taught using this modality. At 2 this time, she experiences significant difficulty across many neurocognitive 3 domains. From a neurocognitive perspective, one would expect her to experience significant difficulty gaining or maintaining employment. 4 Specifically, her attention deficits, memory impairments, speech difficulties, 5 low intellectual functioning, and her severely impaired executive functioning/higher order cognitive processing deficits/frontal lobe 6 dysfunction all contribute to her impaired neurocognitive status. Her 7 neuropsychological condition is disabling at this time. 8 (Id. at 2266-67, emphases omitted.) 9 3. The ALJ’s Evaluation of Dr. Higgins’s Opinions 10 As noted, the ALJ deemed Dr. Higgins’s opinions “otherwise minimally 11 persuasive.” (Id. at 30-31.) The ALJ’s full rationale was as follows: 12 Dane Higgins, Ph.D., completed an independent neuropsychological 13 evaluation on October 11, 2022 and diagnosed ADHD, mild cognitive 14 impairment, mixed receptive-expressive language disorder, post-concussion syndrome, generalized anxiety disorder, major depressive disorder, 15 borderline intellectual functioning, personal history of traumatic brain injury 16 and PTSD. The assessment was performed to assess claimant’s neurocognitive and psychological functioning, to assist with determining the 17 severity of any attention, memory or other neurocognitive deficits, weight 18 emotional factors, and aid with treatment planning. Dr. Higgins stated claimant’s full-scale IQ score of 74 placed her in the borderline intellectual 19 functioning range, or in the moderately impaired range of intellectual functioning. 20 21 [¶] Claimant’s performance on neuropsychological testing was otherwise within normal limits across most neurocognitive domains, despite Dr. 22 Higgins’ assessment of a mild cognitive impairment. The record supported 23 mental impairments of anxiety, depression and PTSD, but it did not support severe neurocognitive disorders or ongoing post-concussive syndrome. 24 Claimant otherwise had only mild limitations in understand and memory and 25 she has demonstrated mostly normal mental status signs and obtained two normal results on mini mental status examinations. The IQ score was 26 inconsistent with the claimant’s long-term employment as a phlebotomist, a semi-skilled position. The neurologist office that made referral only 27 interpreted the report of Dr. Higgins to support a mild neurocognitive 28 impairment. The one-time nature of the exam was limited and too much 1 reliance was place upon the subjective history of the claimant. It is of interest that the claimant’s neurologist, Arora Yessshumo, M.D., never entertained a 2 diagnosis of post-concussion syndrome. Dr. Higgin[s]’s opinion was 3 otherwise minimally persuasive based on its inconsistencies with the medical evidence and claimant’s reported and observed levels of functioning. 4 Claimant’s daily activities, including driving anywhere she needed to go, 5 shopping, paying bills and managing her finances, and taking care of her children was inconsistent with borderline intellectual functioning or 6 significant cognitive limitations endorsed by Dr. Higgins. 7 (Id. at 30-31, citations omitted.) 8 9 4. The Parties’ Arguments 10 Plaintiff argues that the ALJ’s evaluation of Dr. Higgins’s opinions was flawed 11 because (1) the ALJ improperly relied “on his own medical perceived medical expertise” 12 when finding that Dr. Higgins’s opinions regarding Plaintiff’s cognitive impairment were 13 inconsistent with Dr. Higgins’s neuropsychological testing results; (2) the ALJ failed to 14 provide precise record citations in support of his determination that Dr. Higgins’s 15 diagnoses of severe neurocognitive disorders and ongoing post-concussive syndrome were 16 inconsistent with the other medical evidence in the record; (3) the ALJ failed to provide an 17 adequate explanation for his determination that Plaintiff’s past semi-skilled work as a 18 phlebotomist was inconsistent with Dr. Higgins’s determination that Plaintiff had an IQ of 19 74; (4) the ALJ improperly discounted Dr. Higgins’s opinions based on the one-time nature 20 of the examination and Dr. Higgins’s reliance on Plaintiff’s subjective reports; (5) the ALJ 21 improperly found a conflict between Dr. Higgins’s diagnosis of post-concussive syndrome 22 and the failure of a different medical provider, Dr. Arora, to diagnose the same syndrome; 23 (6) the ALJ did not adequately explain or support his determination that Dr. Higgins’s 24 opinions were inconsistent with the record and Plaintiff’s “reported and observed levels of 25 functioning”; and (7) the ALJ did not adequately explain or support his determination that 26 Dr. Higgins’s opinions were inconsistent with Plaintiff’s activities of daily living. (Doc. 27 13 at 17-21.) 28 In response, the Commissioner argues that the ALJ permissibly discredited Dr. 1 Higgins’s opinions because (1) “Dr. Higgins alone assessed Plaintiff with severe 2 neurocognitive disorders and ongoing post-concessive syndrome” whereas “Plaintiff’s 3 neurologist ‘never entertained a diagnoses of post-concussion syndrome’” and was unable 4 to “reach a diagnosis of a neurogenerative disease”; (2) Dr. Higgins’s opinions were 5 inconsistent with the “normal results on two MMSEs, and mental status examinations that 6 revealed mostly normal mental status signs”; and (3) Dr. Higgins’s opinions were 7 inconsistent with a consultative examiner’s observation in August 2022 that Plaintiff was 8 “bright and lucid” and able to “easily answer” questions. (Doc. 17 at 13-15.) The 9 Commissioner also disputes Plaintiff’s contention that the ALJ applied his own medical 10 expertise and argues in conclusory fashion that “the ALJ reasonably reviewed the medical 11 evidence for supportability and consistency, according to the new regulations.” (Id. at 15- 12 16.) 13 In reply, Plaintiff begins by arguing as follows: “Notably, the Commissioner repeats 14 the ALJ’s unsupported assumption that [Plaintiff’s] treating neurologist ‘never entertained 15 a diagnosis of post-concussion syndrome.’ How the ALJ and Commissioner could possibly 16 know what the treating neurologist entertained or did not entertain, regardless of what is 17 posited in the medical records, is unexplained. Why the Commissioner defends this 18 reasoning—when [Plaintiff’s] treating neurologist obviously entertained that something 19 was awry with [Plaintiff’s] cognitive abilities, or he would not have referred [Plaintiff] for 20 an in-depth neuropsychological evaluation—is a mystery. This is not a rational or 21 reasonable reason to reject Dr. Higgins’s assessment of [Plaintiff’s] limitations.” (Doc. 18 22 at 5.) In a related vein, Plaintiff argues that “[t]he Commissioner’s statement that ‘Dr. 23 Higgins alone assessed Plaintiff with severe neurocognitive disorders and ongoing post- 24 concussive syndrome’ makes sense, when Dr. Higgins was the only medical provider in 25 this record who evaluated [Plaintiff’s] cognitive impairment with a battery of tests and an 26 in-depth neuropsychological evaluation; indeed, obtaining this information was the reason 27 Dr. Arora sent [Plaintiff] to Dr. Higgins.” (Id. at 5-6.) Finally, Plaintiff accuses the 28 Commissioner of improperly attempting to supply new post hoc rationales; argues that 1 those new rationales do not, in any event, establish any inconsistency; and argues that the 2 Commissioner simply repeats certain of the ALJ’s rationales without defending them. (Id. 3 at 5.) 4 5. Analysis 5 As an initial matter, although the ALJ provided an array of reasons for discrediting 6 Dr. Higgins’s opinions, the Commissioner only defends a handful of those reasons on 7 appeal. As discussed above, the Court construes the answering brief as identifying three 8 reasons why the ALJ’s evaluation of Dr. Higgins’s opinions should be affirmed: (1) the 9 ALJ permissibly found an inconsistency between Dr. Higgins’s opinions and the opinions 10 of Plaintiff’s neurologist, Dr. Arora; (2) the ALJ permissibly found an inconsistency 11 between Dr. Higgins’s opinions and the MMSEs and status examinations administered by 12 other medical providers; and (3) the ALJ permissibly found an inconsistency between Dr. 13 Higgins’s opinions and another medical provider’s observations of Plaintiff’s level of 14 functioning. (Doc. 17 at 14-15.) Notably absent from that list is any defense of the ALJ’s 15 evaluation of the supportability factor. Thus, the Commissioner has forfeited any defense 16 of the ALJ’s supportability analysis.9 17 Turning to the consistency factor, the Commissioner first seeks to defend the ALJ’s 18 finding that Dr. Higgins’s opinions were inconsistent with the opinions and diagnoses 19 offered by Plaintiff’s neurologist, Dr. Arora. (Doc. 17 at 14-15.) The Court agrees with 20 Plaintiff that this portion of the ALJ’s consistency analysis did not provide a valid basis for 21 discrediting Dr. Higgins’s opinions. It would be one thing if Dr. Higgins and Dr. Arora 22 had both sought to test Plaintiff for the same condition and then reached differing 23 conclusions as to its presence or severity—in that scenario, the conflict between the two

24 9 The Court construes the ALJ’s decision as identifying one reason why Dr. Higgins’s opinions should be discredited pursuant to the supportability factor—because Dr. 25 Higgins’s determination that Plaintiff was “in the borderline intellectual functioning range, or in the moderately impaired range of intellectual functioning,” lacked support in the 26 “neuropsychological testing” that Dr. Higgins performed, which showed that Plaintiff “was otherwise within normal limits across most neurocognitive domains.” (AR at 31.) 27 Although Plaintiff explicitly challenges this analysis in her opening brief (Doc. 13 at 17- 18), the Commissioner does not specifically address or defend this analysis in the 28 answering brief. 1 opinions could provide a valid basis for discounting one opinion pursuant to the 2 consistency factor. See generally 20 C.F.R. § 404.1520c(c)(2) (“The more consistent a 3 medical opinion(s) . . . is with the evidence from other medical sources . . . the more 4 persuasive the medical opinion(s) . . . will be.”). But that is not what occurred here. 5 Although the ALJ wrote that “the claimant’s neurologist, [Dr. Arora], never entertained a 6 diagnosis of post-concussion syndrome” (AR at 31), the medical record cited by the ALJ 7 (“B23F,” which appears at AR 1702-1800) does not, at least as far as the Court can tell, 8 contain any indication that Dr. Arora even attempted to evaluate Plaintiff for post- 9 concussion syndrome, let alone considered and then rejected such a diagnosis. Moreover, 10 Dr. Arora referred Plaintiff to Dr. Higgins so that Dr. Higgins could “assess [Plaintiff’s] 11 current level of neurocognitive and psychological functioning” and “assist with 12 determining the severity of her attention, memory, and other neurocognitive deficits.” (Id. 13 at 2263.) On this record, the purported conflict between the opinions of Dr. Arora and Dr. 14 Higgins—where the conflict arose only because Dr. Arora made a referral to Dr. Higgins 15 for the purpose of performing more comprehensive testing in an attempt to diagnose 16 additional conditions—does not provide a basis for discrediting Dr. Higgins. 17 The Commissioner next seeks to defend the ALJ’s finding that Dr. Higgins’s 18 opinions were inconsistent with the MMSEs and status examinations administered by other 19 medical providers. (Doc. 17 at 15.) Although such a conflict could provide a basis for 20 discrediting an opinion pursuant to the consistency factor, the problem here is that the ALJ 21 did not adequately explain why he perceived a conflict. Woods, 32 F.4th at 792 (“Even 22 under the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion 23 as unsupported or inconsistent without providing an explanation supported by substantial 24 evidence.”). The situation here is unlike the situation with Dr. Andersen, where the ALJ 25 specifically identified the portion of Dr. Andersen’s opinion that he found to be 26 unsupported by Dr. Andersen’s MMSE results. In Dr. Higgins’s case, although the ALJ 27 noted that Plaintiff “had only mild limitations in understand[ing] and memory and . . . 28 demonstrated mostly normal mental status signs and obtained two normal results on mini 1 mental status examinations” (AR at 32), Dr. Higgins similarly acknowledged that Plaintiff 2 exhibited many normal signs of understanding, memory, and mental status during his 3 examination—among other things, he stated that Plaintiff’s “range of . . . affect was full 4 and appropriate”; that Plaintiff’s “verbal skills function well”; that Plaintiff “was alert, 5 exhibited good attention and comprehension, and was fully cooperative”; that Plaintiff’s 6 “performance on neuropsychological measures was within normal limits across most 7 neurocognitive domains”; and that Plaintiff’s “performance placed her within normal 8 limits, in the average range of functioning (i.e., from the 26th to 74th percentiles) on 9 measures of mental status and orientation, visual color naming, visual matrix reasoning, 10 visual discriminant attention, sustained visual attention, impulsivity to visual information, 11 perseverative responding to visual information, and reaction time to visual information, 12 visual attentional flexibility, immediate recall of auditory/verbal information, delayed 13 recall of auditory/verbal information, and recognition memory of auditory/verbal 14 information.” (AR at 2264, 2266, 2268.) Under these circumstances, it was incumbent on 15 the ALJ to explain, with specificity, why he perceived the MMSEs and status examinations 16 administered by other providers to be inconsistent with Dr. Higgins’s fairly nuanced 17 opinions. The Court does not foreclose the possibility that the ALJ could have permissibly 18 found such a conflict on this record, but the lack of a sufficiently detailed explanation 19 precludes affirmance. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (“[T]he ALJ 20 must provide sufficient reasoning that allows us to perform our own review, because the 21 grounds upon which an administrative order must be judged are those upon which the 22 record discloses that its action was based.”) (cleaned up). 23 The final portion of the ALJ’s consistency analysis that the Commissioner seeks to 24 defend is the ALJ’s finding that Dr. Higgins’s opinions were inconsistent with Plaintiff’s 25 “observed levels of functioning.” (AR at 31.) According to the Commissioner, the 26 observation to which the ALJ was referring was a report by consultative examiner Dr. 27 Hauke, who described Plaintiff as “bright and lucid” and able to “easily answer” questions. 28 (Doc. 17 at 15, citing AR at 1921.) This argument fails for two reasons. First, the ALJ did 1 not identify Dr. Hauke’s report as providing the foundation for the “observed levels of 2 functioning” conclusion. In fact, this sentence of the opinion is not supported by any 3 citation to the record. The Commissioner cannot fill this void by citing evidence the ALJ 4 did not cite. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) 5 (“Long-standing principles of administrative law require us to review the ALJ’s decision 6 based on the reasoning and factual findings offered by the ALJ—not post hoc 7 rationalizations that attempt to intuit what the adjudicator may have been thinking.”). 8 Second, even assuming the ALJ intended to base the finding of inconsistency on Dr. 9 Hauke’s description of Plaintiff as “bright and lucid” and able to “easily answer” questions, 10 it is not clear why the ALJ viewed that description as inconsistent with Dr. Higgins’s 11 opinions. As noted, although Dr. Higgins found that Plaintiff was severely impaired in 12 certain respects, Dr. Higgins also noted that she “was alert, exhibited good attention and 13 comprehension, and was fully cooperative” during his examination and that her “verbal 14 skills function well.” (AR at 2268.) As before, although the Court does not foreclose the 15 possibility that the ALJ could have permissibly found a conflict between Dr. Hauke’s and 16 Dr. Higgins’s observations of Plaintiff’s levels of functioning, the problem lies in the lack 17 of a sufficiently detailed explanation. Lambert, 980 F.3d at 1277. 18 C. PA-C Albertson 19 1. Standard Of Review 20 The ALJ’s evaluation of PA-C Albertson’s opinions is subject to the same standard 21 of review, set forth in Part IV.A.1 above, that governs the ALJ’s evaluation of Dr. 22 Andersen’s opinions. 23 2. PA-C Albertson’s Opinions 24 On June 8, 2021, PA-C Albertson completed a two-page checkbox form entitled 25 “Medical Assessment of Ability to Do Work-Related Physical Activities.” (AR at 820- 26 21.) In the form, PA-C Albertson checked boxes indicating, inter alia, that Plaintiff would 27 be able to sit for less than 2 hours in an 8-hour workday; would be able to stand/walk for 28 less than 2 hours in an 8-hour workday; would be able to lift less than 10 pounds; would 1 be able to carry less than 10 pounds; would need to alternate between sitting, standing, and 2 walking every 1-20 minutes; would need to rest every 15+ minutes; would be able to use 3 each hand, bend, reach, and stoop on a “less than occasional” basis; had cognitive or pace 4 limitations that would cause her to experience “severe” interruptions of work pace; and 5 would need to miss 6+ days of work per month due to her medical conditions. (Id.) 6 3. The ALJ’s Evaluation of PA-C Albertson’s Opinions 7 As noted, the ALJ deemed PA-C Albertson’s opinions “unpersuasive.” (Id. at 28.) 8 The ALJ’s full rationale was as follows: 9 Michael Albertson, PA-C, completed a functional assessment on June 8, 10 2021 finding claimant limited to less than sedentary work activity, and that claimant would likely miss more than six days of work per month due to her 11 impairments. This opinion was unpersuasive based on its inconsistency with 12 the greater record and with claimant’s reported and observed levels of functioning. The record did not support Mr. Albertson’s assertion that 13 claimant could less than occasionally use her hands or perform postural maneuvers such as stooping. This statement was inconsistent with the 14 claimant’s denials of hand pain, weakness, numbness, and tingling. There 15 was also inadequate support for the assertion that claimant’s cognitive limitations precluded simple work activity or the ability to sustain regular 16 work pace. Mr. Albertson was completely unqualified to render any opinion 17 as to the vocational implications of a mental impairment. As a PA-C, his opinions were far less persuasive than those of a physician with far greater 18 education and experience. In addition, progress notes from this source dated 19 May 17, 2021 showed normal general exam findings with no neurological deficits and normal mental status. 20 21 (Id., citations omitted.) 22 4. The Parties’ Arguments 23 Plaintiff argues that the ALJ’s evaluation of PA-C Albertson’s opinions was flawed 24 because (1) in some instances, the ALJ merely provided vague references to the greater 25 record; (2) although the ALJ stated that PA-C Albertson’s opinions regarding Plaintiff’s 26 hand limitations were contradicted by certain medical records, the cross-referenced records 27 actually show that Plaintiff either complained about hand symptoms or was silent on the 28 topic; (3) the ALJ’s determination that PA-C Albertson was unqualified to opine on 1 Plaintiff’s mental impairments was based on a misapprehension of PA-C Albertson’s 2 opinions, which merely sought to assess the effect of Plaintiff’s chronic pain on her ability 3 to sustain work; (4) more broadly, the ALJ’s decision to discredit PA-C Albertson’s 4 opinions based on his status as a physician’s assistant is contrary to the new regulations; 5 and (5) the ALJ provided insufficient reasons for crediting the opinions of certain other 6 medical providers. (Doc. 13 at 21-24.) 7 In response, the Commissioner argues that the ALJ permissibly discredited PA-C 8 Albertson’s opinions because (1) PA-C Albertson “did not provide any narrative 9 explanation to support the opined limitations he identified”; and (2) PA-C Albertson’s 10 finding of hand-related limitations was inconsistent with treatment notes from other 11 providers reflecting an absence of observable hand-related symptoms. (Doc. 17 at 16-18.) 12 The Commissioner also briefly addresses, and defends, the ALJ’s reasoning for accepting 13 the opinions of certain other medical sources. (Id. at 18-19.) 14 In reply, Plaintiff argues that because the ALJ did not identify the lack of a narrative 15 explanation as a basis for discrediting PA-C Albertson’s opinions, the Commissioner may 16 not offer that rationale for the first time on appeal; reiterates that the treatment notes cited 17 by the ALJ are not inconsistent with PA-C Albertson’s opinions; and reiterates that the 18 ALJ’s analysis as to the other providers was insufficient. (Doc. 18 at 6-7.) 19 5. Analysis 20 The ALJ expressly considered the supportability and consistency factors when 21 evaluating PA-C Albertson’s opinions, as required by the new regulations. (AR at 28.) 22 Additionally, the Court agrees with the Commissioner that the ALJ provided a legally 23 sufficient reason for discounting PA-C Albertson’s opinions pursuant to the consistency 24 factor. Although PA-C Albertson opined that Plaintiff would be able to perform “less than 25 occasional” activities with either hand (AR at 820), the ALJ correctly noted that there were 26 multiple instances in which, although Plaintiff complained of hand pain during medical 27 appointments, the medical provider was ultimately unable to find any objective evidence 28 of a hand-related impairment. (Id. at 1867 [“Left Wrist—No tenderness, swelling, 1 effusion, or limitation to range of motion. Hands—No tenderness, swelling, effusion, or 2 limitation to range of motion.”]; id. at 1896 [“Moves all 4 extremities, No joint swelling. 3 No pedal edema. No arthritis seen on both hands.”]; id. at 2299 [“Negative” for “Extremity 4 weakness, Headache, Numbness in extremity and Tingling]; id. at 2300 [“Hands—No 5 tenderness, swelling, effusion, or limitation to range of motion.”].) Although Plaintiff 6 identifies reasons why the ALJ could have viewed these records as reconcilable with PA- 7 C Albertson’s opinions regarding her hand limitations, it was rational for the ALJ to make 8 a finding of inconsistency. And as noted elsewhere in this order, “[w]here the evidence is 9 susceptible to more than one rational interpretation, one of which supports the ALJ’s 10 decision, the ALJ’s conclusion must be upheld.” Thomas, 278 F.3d at 954. 11 On the other hand, although the ALJ provided two reasons for discounting PA-C 12 Albertson’s opinions pursuant to the supportability factor—first, because PA-C Albertson 13 was “completely unqualified to render any opinion as to the vocational implications of a 14 mental impairment” due to a lack of the “greater education and experience” possessed by 15 a physician; and second, because “progress notes from this source dated May 17, 2021 16 showed normal general exam findings with no neurological deficits and normal mental 17 status” (AR at 28)—the Commissioner does not defend either of those reasons in the 18 answering brief. Instead, the Commissioner seems to argue that the ALJ properly 19 discredited PA-C Albertson’s opinions pursuant to the supportability factor because 20 “Albertson did not offer any narrative explanation or comments to support the opined 21 limitations he identified, nor did he specify which impairments gave rise to his restrictive 22 opinion. . . . In the absence of any narrative explanation . . . in Mr. Albertson’s opinion, 23 the ALJ appropriately looked to Plaintiff’s treatment notes to assess the supportability and 24 consistency of his opinion.” (Doc. 17 at 16-17.) The problem with this approach is that 25 although the lack of a narrative explanation could have been a permissible reason to 26 discount PA-C Albertson’s opinions pursuant to the supportability factor, Weiss v. 27 Kijakazi, 2023 WL 4030839, *1 (9th Cir. 2023) (concluding that the ALJ “reasonably 28 found . . . unpersuasive” certain “opinions [that] were in check-box form and were not 1 accompanied by explanation or narrative”), the ALJ did not provide that reason in the 2 underlying decision and the Court must limit its review to the ALJ’s proffered reasons. 3 Bray, 554 F.3d at 1225. 4 This conclusion, however, does not mean that Plaintiff is entitled to reversal with 5 respect to her challenge to the ALJ’s evaluation of PA-C Albertson’s opinions. The Ninth 6 Circuit has stated that any error in an ALJ’s supportability analysis is harmless if the ALJ 7 also provided a legally sufficient reason for discrediting a medical source’s opinion 8 pursuant to the consistency factor. Woods, 32 F.4th at 793 n.4 (suggesting that even if an 9 opinion is supported, an ALJ may properly find it unpersuasive pursuant to the consistency 10 factor); Palmer v. O’Malley, 2024 WL 1904347, *1 (9th Cir. 2024) (“[T]he ALJ’s 11 conclusion that Dr. Young and Dr. Koss-Leland’s opinions are inconsistent with the 12 [medical evidence] is supported by substantial evidence. Accordingly, to the extent the 13 ALJ erred by failing to clearly articulate how she considered the supportability factor, any 14 such error was harmless.”). That is the situation here. 15 D. Remedy 16 Plaintiff asks the Court to apply the “credit-as-true” rule, which would result in the 17 remand of her case for the limited purpose of calculating benefits. (Doc. 13 at 24-25.) 18 “The credit-as-true analysis has evolved in our circuit over time, thus providing a 19 challenge for application by the district court.” Leon v. Berryhill, 880 F.3d 1041, 1044 20 (9th Cir. 2017). As the Ninth Circuit has clarified in recent opinions, “[a]n automatic award 21 of benefits in a disability benefits case is a rare and prophylactic exception to the well- 22 established ordinary remand rule.” Id. See also Treichler v. Comm’r of Soc. Sec. Admin., 23 775 F.3d 1090, 1101 n.5 (9th Cir. 2014) (“[O]ur jurisprudence . . . requires remand for 24 further proceedings in all but the rarest cases.”). 25 “The credit-as-true rule has three steps. First, we ask whether the ALJ has failed to 26 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or 27 medical opinion. Second, we determine whether the record has been fully developed, 28 whether there are outstanding issues that must be resolved before a determination of 1 disability can be made, and whether further administrative proceedings would be useful. 2 And third, if no outstanding issues remain and further proceedings would not be useful, 3 only then do we have discretion to find the relevant testimony credible as a matter of law. 4 Even if all three steps are met, the decision whether to remand a case for additional 5 evidence or simply to award benefits is in our discretion.” Washington v. Kijakazi, 72 F.4th 6 1029, 1041 (9th Cir. 2023) (cleaned up). A district court properly exercises its discretion 7 to remand for further proceedings where “there is serious doubt as to whether [the claimant] 8 is disabled.” Leon, 880 F.3d at 1048. See also Brown-Hunter v. Colvin, 806 F.3d 487, 495 9 (9th Cir. 2015) (“[E]ven if all three requirements are met, we retain flexibility in 10 determining the appropriate remedy. We may remand on an open record for further 11 proceedings when the record as a whole creates serious doubt as to whether the claimant 12 is, in fact, disabled within the meaning of the Social Security Act.”) (cleaned up). 13 The credit-as-true rule is inapplicable here. Although step one is satisfied in light 14 of the ALJ’s failure to provide legally sufficient reasons for discrediting the opinions of 15 Dr. Higgins, step two is not—further administrative proceedings would be useful to enable 16 the ALJ to address the analytical deficiencies discussed above, including why the ALJ 17 viewed Dr. Higgins’s opinions as lacking support in Dr. Higgins’s own testing, why the 18 ALJ viewed Dr. Higgins’s opinions as inconsistent with the MMSEs and status 19 examinations administered by other medical providers, and why the ALJ viewed Dr. 20 Higgins’s opinions as inconsistent with Plaintiff’s observed levels of functioning. 21 Alternatively, even if step two were satisfied, the Court would decline in its 22 discretion to order a remand for benefits under step three because the record as a whole 23 creates serious doubt as to whether Plaintiff is, in fact, disabled. As discussed, the ALJ 24 discredited Plaintiff’s symptom testimony (a decision Plaintiff does not challenge on 25 appeal), permissibly discredited the opinions of some medical sources who attempted to 26 opine to disabling limitations, and accepted the opinions of other medical sources who 27 opined to less restrictive limitations. See, e.g., Leon, 880 F.3d at 1048 (“[W]e remand on 28 an open record because there is serious doubt as to whether Leon is in fact disabled, given 1 || that the district court upheld the ALJ’s other findings.”); Burrell v. Colvin, 775 F.3d 1133, 2\) 1141-42 (9th Cir. 2014) (rejecting the claimant’s argument that “because the ALJ’s reasons for discrediting her testimony and Dr. Riley’s assessment are legally insufficient, we have 4|| no choice but to... remand for an award of benefits” and concluding that a remand for 5 || further proceedings was the appropriate remedy because, even though “Claimant may be || disabled,” “evidence in this record not discussed by the ALJ” cast serious doubt on the claim of disability). 8 Accordingly, 9 IT IS ORDERED that the decision of the ALJ is reversed. This matter is remanded for further proceedings. The Clerk shall enter judgment accordingly and 11 |} terminate this action. 12 Dated this 19th day of September, 2024. 13 14 Lm ee” 15 f t _o——— Dominic W. Lanza 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

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