Morris v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: February 15, 2022
• Docket: 2:20-cv-00384
• Status: Unknown

Opinion

1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Feb 15, 2022 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 MATTHEW M.,1 No. 2:20-cv-00384-MKD

8 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY 9 vs. JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR 10 KILOLO KIJAKAZI, ACTING SUMMARY JUDGMENT COMMISSIONER OF SOCIAL 11 SECURITY, ECF Nos. 19, 20

12 Defendant. 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 19, 20. The Court, having reviewed the administrative record and the parties’ 15 briefing, is fully informed. For the reasons discussed below, the Court denies 16 Plaintiff’s motion, ECF No. 19, and grants Defendant’s motion, ECF No. 20. 17

18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 1 JURISDICTION 2 The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g).

3 STANDARD OF REVIEW 4 A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported

7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159

10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a

13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152,

17 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 18 rational interpretation, [the court] must uphold the ALJ’s findings if they are 19 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674

20 F.3d 1104, 1111 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. §§ 1 404.1502(a), 416.920(a). Further, a district court “may not reverse an ALJ’s 2 decision on account of an error that is harmless.” Id. An error is harmless “where

3 it is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 4 1115 (quotation and citation omitted). The party appealing the ALJ’s decision 5 generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 6 556 U.S. 396, 409-10 (2009).

7 FIVE-STEP EVALUATION PROCESS 8 A claimant must satisfy two conditions to be considered “disabled” within 9 the meaning of the Social Security Act. First, the claimant must be “unable to

10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve

13 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 14 “of such severity that he is not only unable to do his previous work[,] but cannot, 15 considering his age, education, and work experience, engage in any other kind of 16 substantial gainful work which exists in the national economy.” 42 U.S.C. §

17 423(d)(2)(A). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §

20 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 1 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 2 “substantial gainful activity,” the Commissioner must find that the claimant is not

3 disabled. 20 C.F.R. § 404.1520(b). 4 If the claimant is not engaged in substantial gainful activity, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers

7 from “any impairment or combination of impairments which significantly limits 8 [his or her] physical or mental ability to do basic work activities,” the analysis 9 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment

10 does not satisfy this severity threshold, however, the Commissioner must find that 11 the claimant is not disabled. Id. 12 At step three, the Commissioner compares the claimant’s impairment to

13 severe impairments recognized by the Commissioner to be so severe as to preclude 14 a person from engaging in substantial gainful activity. 20 C.F.R. § 15 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 16 enumerated impairments, the Commissioner must find the claimant disabled and

17 award benefits. 20 C.F.R. § 404.1520(d). 18 If the severity of the claimant’s impairment does not meet or exceed the 19 severity of the enumerated impairments, the Commissioner must pause to assess

20 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 1 defined generally as the claimant’s ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations, 20 C.F.R. §

3 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 4 At step four, the Commissioner considers whether, in view of the claimant’s 5 RFC, the claimant is capable of performing work that he or she has performed in 6 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is

7 capable of performing past relevant work, the Commissioner must find that the 8 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 9 performing such work, the analysis proceeds to step five.

10 At step five, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing other work in the national economy. 12 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner

13 must also consider vocational factors such as the claimant’s age, education, and 14 past work experience. Id. If the claimant is capable of adjusting to other work, the 15 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 16 404.1520(g)(1). If the claimant is not capable of adjusting to other work, analysis

17 concludes with a finding that the claimant is disabled and is therefore entitled to 18 benefits. Id. 19 The claimant bears the burden of proof at steps one through four above.

20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 1 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 2 capable of performing other work; and 2) such work “exists in significant numbers

3 in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 4 386, 389 (9th Cir. 2012). 5 ALJ’S FINDINGS 6 On May 7, 2018 Plaintiff applied for Title II disability insurance benefits

7 alleging a disability onset date of September 30, 2016. Tr. 15, 80, 165-66. The 8 application was denied initially and on reconsideration. Tr. 101-03, 105-07. 9 Plaintiff appeared before an administrative law judge (ALJ) on January 30, 2020.

10 Tr. 32-65. On February 21, 2020, the ALJ denied Plaintiff’s claim. Tr. 12-31. 11 At step one of the sequential evaluation process, the ALJ found Plaintiff, 12 who met the insured status requirements through December 31, 2021, has not

13 engaged in substantial gainful activity since September 30, 2016, the alleged onset 14 date. Tr. 17. At step two, the ALJ found that Plaintiff has the following severe 15 impairments: degenerative [joint] disease of the knees, edema, extreme morbid 16 obesity, hypogonadism (failure of the gonads to function properly), and a social

17 anxiety disorder. Tr. 18. 18 At step three, the ALJ found Plaintiff does not have an impairment or 19 combination of impairments that meets or medically equals the severity of a listed

20 1 impairment. Id. The ALJ then concluded that Plaintiff has the RFC to perform 2 light work with the following limitations:

3 [H]e can perform postural activities occasionally but he can never kneel, crawl, or climb ladders, ropes, or scaffolds, and he should avoid 4 concentrated exposure to extreme temperatures, humidity, vibrations, and respiratory irritants, and all exposure to hazards (such as unprotected heights 5 and moving machinery). He is able to understand, remember, and carry out simple, routine and semi-skilled tasks and is able to maintain concentration, 6 persistence, and pace for two hour intervals between regularly scheduled breaks in a predictable environment with seldom change, and no fast paced 7 or production rate of pace work, and only occasional and superficial interaction with the public. 8 Tr. 20. 9 At step four, the ALJ found Plaintiff is unable to perform any past relevant 10 work. Tr. 25. At step five, the ALJ found that, considering Plaintiff’s age, 11 education, work experience, RFC, and testimony from the vocational expert, there 12 were jobs that existed in significant numbers in the national economy that Plaintiff 13 could perform, such as garment sorter, warehouse checker, and mail clerk. Tr. 26. 14 Therefore, the ALJ concluded Plaintiff was not under a disability, as defined in the 15 Social Security Act, from the alleged onset date of September 30, 2016, through 16 the date of the decision. Tr. 27. 17 On August 26, 2020, the Appeals Council denied review of the ALJ’s 18 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 19 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 20 1 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying

3 him disability insurance benefits under Title II of the Social Security Act. Plaintiff 4 raises the following issues for review: 5 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 6 2. Whether the ALJ properly evaluated the medical opinion evidence.

7 ECF No. 19 at 6, 13. 8 DISCUSSION 9 A. Plaintiff’s Symptom Claims

10 Plaintiff contends the ALJ erred by failing to rely on reasons that were clear 11 and convincing in discrediting his symptom claims. ECF No. 16 at 6-13. An ALJ 12 engages in a two-step analysis to determine whether to discount a claimant’s

13 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 14 “First, the ALJ must determine whether there is objective medical evidence of an 15 underlying impairment which could reasonably be expected to produce the pain or 16 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted).

17 “The claimant is not required to show that [the claimant’s] impairment could 18 reasonably be expected to cause the severity of the symptom [the claimant] has 19 alleged; [the claimant] need only show that it could reasonably have caused some

20 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 1 Second, “[i]f the claimant meets the first test and there is no evidence of 2 malingering, the ALJ can only reject the claimant’s testimony about the severity of

3 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 4 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 5 omitted). General findings are insufficient; rather, the ALJ must identify what 6 symptom claims are being discounted and what evidence undermines these claims.

7 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 8 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 9 explain why it discounted claimant’s symptom claims)). “The clear and

10 convincing [evidence] standard is the most demanding required in Social Security 11 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 12 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

13 Factors to be considered in evaluating the intensity, persistence, and limiting 14 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 15 duration, frequency, and intensity of pain or other symptoms; 3) factors that 16 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and

17 side effects of any medication an individual takes or has taken to alleviate pain or 18 other symptoms; 5) treatment, other than medication, an individual receives or has 19 received for relief of pain or other symptoms; 6) any measures other than treatment

20 an individual uses or has used to relieve pain or other symptoms; and 7) any other 1 factors concerning an individual’s functional limitations and restrictions due to 2 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §

3 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 4 individual’s record,” “to determine how symptoms limit ability to perform work- 5 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 6 The ALJ found that Plaintiff’s medically determinable impairments could

7 reasonably be expected to cause some of the alleged symptoms but that Plaintiff’s 8 statements concerning the intensity, persistence, and limiting effects of his 9 symptoms were not entirely consistent with the medical evidence and other

10 evidence in the record. Tr. 20, 22.2 11 1. Inconsistent Objective Medical Evidence 12 The ALJ found the medical record does not support Plaintiff’s symptom

13 claims. Tr. 20-22. An ALJ may not discredit a claimant’s symptom testimony and 14 deny benefits solely because the degree of the symptoms alleged is not supported 15 by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 16 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen,

17 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 18

19 2 Pages seven and eight of the ALJ’s decision are out of order in the Administrative 20 Record. Page eight of the decision is first, at Tr. 21, and page seven is on Tr. 22. 1 2005). However, the objective medical evidence is a relevant factor, along with 2 the medical source’s information about the claimant’s pain or other symptoms, in

3 determining the severity of a claimant’s symptoms and their disabling effects. 4 Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). Here, the ALJ found that 5 other than obesity, Plaintiff had minimal physical conditions. Tr. 22. The ALJ 6 noted records showed Plaintiff weighed over 600 pounds by December 2017. Tr.

7 22. The ALJ indicated he considered SSR 19-2p and the effect of obesity on co- 8 existing impairments; he concluded “Plaintiff’s extreme obesity obviously reduces 9 his exertional limitations,” but there was no evidence supporting disabling

10 limitations. Tr. 21. Although the ALJ acknowledged the records show significant 11 weight gain, the ALJ noted that in February 2018 Plaintiff was losing weight with 12 medication, phentermine, and was down to 508 pounds by August 2018. Tr. 22;

13 see Tr. 288, 293, 298, 300, 499. The ALJ also found that obesity was a 14 longstanding condition and that Plaintiff had worked at SGA levels with such 15 condition through 2015. Tr. 22. 16 In terms of knee pain, the ALJ noted an MRI in 2016 showed potential

17 undersurface tear of the posterior horn of the medial meniscus, but also that there 18 was no evidence of significant intervening treatment and records from 2018 19 showed Plaintiff reported steroid injections provided noticeable relief. Tr. 22

20 (citing Tr. 320-21, 356-57, 364). While Plaintiff reported his knees were very sore 1 in May 2018, the ALJ noted he also reported he had to do a lot of moving at that 2 time following his grandmother’s death. Tr. 22 (citing Tr. 365). The ALJ also

3 noted that although Plaintiff reported bilateral knee osteoarthritis in 2018, there is 4 no imaging of his left knee. Tr. 22. An x-ray of his right knee was normal in 5 August 2016. Tr. 358. Treatment has been limited and while records show reports 6 of persistent knee pain, the ALJ also noted clinical examinations were generally

7 unremarkable. Tr. 22; see, e.g., Tr. 278 (August 2016: very obese, normal gait, no 8 limp or edema); Tr. 282 (July 2016: chronic pain of right knee, some difficulty 9 getting up from a chair secondary to knee pain and swelling, will get x-ray and go

10 to physical therapy); Tr. 305 (November 2017: persistent knee pain, not exercising 11 because of discomfort); Tr. 366 (April 2018: physical therapy assessment noted 12 severe obesity with bilateral knee osteoarthritis, limited range of motion in hip and

13 strength in right knee); Tr. 476 (May 2018: reports pain in right and left knee, will 14 start physical therapy in water); Tr. 478 (May 2018: bilateral knee injections for 15 osteoarthritis, physical exam normal); Tr. 515 (September 2018: follow up bilateral 16 knee injections, reports left knee hardly any pain, right knee bothering him. No

17 edema noted on physical exam). 18 The ALJ acknowledged Plaintiff was diagnosed with obstructive sleep apnea 19 in March 2017, but also that records show this is being adequately treated, causing

20 no functional limitations. Tr. 22. A sleep study in March 2017 showed 1 “obstructive sleep apnea of a very severe degree” and although CPAP therapy was 2 noted not adequate due to persistent hypoxia, nasal BiPAP therapy was beneficial

3 with “significant improvement in sleep-disordered breathing including 4 hypoxemia.” Tr. 380. In May 2017, his endocrinologist noted hypogonadism with 5 “broad differential including … obstructive sleep apnea (for which the patient just 6 started treatment).” Tr. 289. He was noted to be sleeping better with BiPAP,

7 although he had not yet experienced significant improvement with fatigue. Tr. 8 296. The ALJ noted Plaintiff did not raise sleep apnea as an issue during his 9 testimony. Tr. 22.

10 While records show impairments and some reports of increased symptoms, 11 the ALJ’s finding that the medical record does not support Plaintiff’s report of 12 severe restrictions is reasonable. While a different interpretation of the medical

13 evidence could be made, the ALJ’s interpretation that the medical evidence was 14 inconsistent with Plaintiff’s complaints of disabling symptoms is rational and 15 supported by substantial evidence. See Batson v. Comm’r of Soc. Sec. Admin., 359 16 F.3d 1190, 1198 (9th Cir. 2004) (recognizing that when evidence in the record is

17 subject to more than one rational interpretation, the court defers to the ALJ’s 18 finding). Lack of support in the medical record, coupled with the additional 19 supported reason offered by the ALJ as discussed below, is a clear and convincing

20 reason to give less weight to Plaintiff’s subjective symptoms complaints. 1 2. Inconsistent report of weight gain 2 The ALJ found that Plaintiff’s “complaints also appear to misrepresent the

3 record, specifically that his alleged weight gain/increase had occurred in just the 4 last two years.” Tr. 22. In evaluating a claimant’s symptom claims, an ALJ may 5 consider the consistency of an individual’s own statements made in connection 6 with the disability-review process with any other existing statements or conduct

7 under other circumstances. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) 8 Here, as Plaintiff points out, there is no evidence he alleged the weight gain had 9 occurred only in the past two years. ECF No. 19 at 8. Records show he

10 “admit[ted] 100-200 [pound] weight gain in last 2 years” at a sleep study in May 11 2017 and reported “unintentional weight gain over the past 2-3 years” at an 12 endocrinology appointment in May 2017; Plaintiff weighed 614 pounds at that

13 appointment, with a BMI of 67.56 (he is 6’8” tall). Tr. 296. The ALJ 14 acknowledged Plaintiff was “400 pounds by December 2015 and over 600 pounds 15 in August 2017,” and records show his providers were concerned about his 16 significant unintentional weight gain during this time. Tr. 22, 296, 383. Dr. Alto,

17 a reviewing doctor the ALJ found persuasive, also indicated Plaintiff had a “300 18 pound weight gain in 5 years.” Tr. 91. Records support Plaintiff’s significant 19 abnormal weight gain during the period at issue and there is no evidence he

20 misrepresented the record concerning his weight gain over a specific period of 1 time. This was therefore not a clear and convincing reason to discount Plaintiff’s 2 symptom reports.

3 While the ALJ erred by discrediting Plaintiff’s symptoms complaints based 4 on his reports of rapid weight gain, the error is inconsequential to the ultimate 5 disability determination and is harmless, as the ALJ provided other specific, clear, 6 and convincing reasons to discount Plaintiff’s symptom claims. See Carmickle v.

7 Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008); Molina, 674 8 F.3d at 1115 (“[S]everal of our cases have held that an ALJ’s error was harmless 9 where the ALJ provided one or more invalid reasons for disbelieving a claimant’s

10 testimony, but also provided valid reasons that were supported by the record.”); 11 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) 12 (holding that any error the ALJ committed in asserting one impermissible reason

13 for claimant’s lack of credibility did not negate the validity of the ALJ’s ultimate 14 conclusion that the claimant’s testimony was not credible). 15 3. Improvement/Controlled with Treatment 16 The ALJ discounted Plaintiff’s symptom claims of disabling anxiety because

17 his anxiety was controlled with treatment. Tr. 22-23. The effectiveness of 18 medication and treatment is a relevant factor in determining the severity of a 19 claimant’s symptoms. 20 C.F.R. § 404.1529(c)(3); see Warre v. Comm’r of Soc.

20 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (recognizing that conditions 1 effectively controlled with medication are not disabling for purposes of 2 determining eligibility for benefits) (internal citations omitted); see also

3 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (A favorable response 4 to treatment can undermine a claimant’s complaints of debilitating pain or other 5 severe limitations.). 6 Here, the ALJ cited treatment records showing Plaintiff’s anxiety was

7 controlled with medication. For example, the ALJ found that in 2018 Plaintiff 8 reported improvement in his anxiety and that mental status exams throughout 2017 9 and 2018 were within normal limits. Tr. 22, 474, 520. The ALJ noted that in

10 August 2018 Plaintiff reported he had more difficulty with symptoms after his 11 mother died, but he also reported “he was now back on track.” Tr. 22, 499. 12 Records also show that in August 2018 his primary care provider noted he was

13 “suffering from situation anxiety/panic” due to the death of his grandmother in 14 April and his mother in July; he increased Plaintiff’s clonazepam at that time. Tr. 15 480. The ALJ noted at a psychiatric evaluation in October 2018 Plaintiff reported 16 his symptoms had worsened after his mother’s death but had otherwise been stable

17 and under control with medication. Tr. 21, 510. In August 2018, he reported his 18 anxiety had improved, his provider noted his hypertension improved along with his 19 anxiety, that he was “feeling better,” and that clonazepam had “really helped.” Tr.

20 520. In February 2019, his primary care provider reported his anxiety was stable 1 with medication. Tr. 570. The ALJ also explained that Dr. Toews, the 2 psychological expert at the hearing, testified that mental status observations were

3 generally unremarkable and within normal limits, he had minimal psychological 4 symptoms with temporary increase in symptoms due to bereavement in 2018 and 5 unremarkable/normal limitations thereafter, and that based on his review of the 6 record Plaintiff was stable. Tr. 23-24.

7 The ALJ reasonably interpreted the evidence and permissibly discounted 8 Plaintiff’s subjective complaints concerning anxiety based on his history of 9 effective control with medication.

10 4. Conservative Treatment 11 The ALJ discounted Plaintiff’s symptom claims due to his “limited need for 12 or pursuit of any significant treatment for his alleged impairments.” Tr. 22.

13 Evidence of conservative treatment is sufficient to discount a claimant’s testimony 14 regarding the severity of an impairment. See Tommasetti v. Astrue, 533 F.3d 1035, 15 1039 (9th Cir. 2008) (holding the ALJ permissibly inferred that the claimant’s 16 “pain was not as all-disabling as he reported in light of the fact that he did not seek

17 an aggressive treatment program” and “responded favorably to conservative 18 treatment including physical therapy and the use of anti-inflammatory medication, 19 a transcutaneous electrical nerve stimulation unit, and a lumbosacral corset”). The

20 ALJ also notes, however, that Plaintiff testified he was “supposed to be losing 1 weight in preparation for gastric bypass surgery but was essentially at a standstill.” 2 Tr. 22. The ALJ discounts Plaintiff’s testimony because he has not had significant

3 treatment. Tr. 22. Review of the medical record, however, shows bariatric surgery 4 was recommended but Plaintiff was too obese to undergo surgery during the period 5 at issue. In 2017, for example, his endocrinologist advised him that “bariatric 6 surgery offers him the best choice and chance of having an adequate life. I will

7 start the process to work towards that outcome.” Tr. 306. Plaintiff was put on 8 medication to assist with weight loss at that time. Id. In February 2018, his 9 endocrinologist noted Plaintiff was doing well on phentermine and “clearly losing

10 weight well on the drug,” but also that this medication was “only a gateway to get 11 him to bariatric surg[ery].” Tr. 298, 301. He had lost 25 pounds at that time and 12 was down to 550 pounds with a BMI of 60.42. Tr. 298, 300. Records from an

13 orthopedic consult for knee pain in 2016, when his weight was just over 400 14 pounds, show that even then he was considered a “poor surgical candidate due to 15 weight” and other medical issues, and that he “would need weight loss and cardiac 16 clearance prior to any surgery.” Tr. 321. Because surgery was neither

17 recommended or sanctioned by Plaintiff’s doctors due to his weight during the 18 period at issue, the doctors’ recommendation of more conservative treatment (i.e., 19 physical therapy, medication for weight loss, cortisone injections) was not a clear

20 and convincing reason to discredit his symptom testimony. Nevertheless, this error 1 is harmless because, as discussed supra, the ALJ provides additional reasons, 2 supported by substantial evidence, for discrediting Plaintiff’s symptom complaints.

3 See Carmickle, 533 F.3d at 1162-63; Molina, 674 F.3d at 1115. Plaintiff is not 4 entitled to remand on these grounds. 5 B. Medical Opinion Evidence 6 Plaintiff contends the ALJ erred in rejecting the opinion of Jeffrey Jameson,

7 D.O., and Kim Chupurdia, Ph.D. in favor of the opinions of J.D. Fitterer, M.D., 8 Mary Alto, M.D., and Jay Toews, Ed.D.3 ECF No. 19 at 13-19. 9 As an initial matter, for claims filed on or after March 27, 2017, new

10 regulations apply that change the framework for how an ALJ must evaluate 11 medical opinion evidence. Revisions to Rules Regarding the Evaluation of 12 Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20

13 C.F.R. § 404.1520c. The new regulations provide that the ALJ will no longer 14 “give any specific evidentiary weight…to any medical opinion(s)…” Revisions to 15

16 3 The ALJ also found the opinions of Eugene Kester, M.D. and Andrew Forsyth, 17 Ph.D. persuasive, but Plaintiff does not address these opinions, nor the opinion of 18 medical expert Jerry Seligman, M.D., except for summarizing the testimony of Dr. 19 Seligman and mentioning his opinion in a brief footnote, and has therefore waived

20 arguments concerning these opinions, as discussed infra. See ECF No. 19 at 4, 16. 1 Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 2 404.1520c(a). Instead, an ALJ must consider and evaluate the persuasiveness of

3 all medical opinions or prior administrative medical findings from medical sources. 4 20 C.F.R. § 404.1520c(a) and (b). The factors for evaluating the persuasiveness of 5 medical opinions and prior administrative medical findings include supportability, 6 consistency, relationship with the claimant (including length of the treatment,

7 frequency of examinations, purpose of the treatment, extent of the treatment, and 8 the existence of an examination), specialization, and “other factors that tend to 9 support or contradict a medical opinion or prior administrative medical finding”

10 (including, but not limited to, “evidence showing a medical source has familiarity 11 with the other evidence in the claim or an understanding of our disability 12 program’s policies and evidentiary requirements”). 20 C.F.R. § 404.1520c(c)(1)-

13 (5). 14 Supportability and consistency are the most important factors, and therefore 15 the ALJ is required to explain how both factors were considered. 20 C.F.R. § 16 404.1520c(b)(2). Supportability and consistency are explained in the regulations:

17 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 18 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 19 administrative medical finding(s) will be.

20 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 1 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 2 finding(s) will be.

3 20 C.F.R. § 404.1520c(c)(1)-(2). The ALJ may, but is not required to, explain how 4 the other factors were considered. 20 C.F.R. § 404.1520c(b)(2). However, when 5 two or more medical opinions or prior administrative findings “about the same 6 issue are both equally well-supported ... and consistent with the record ... but are 7 not exactly the same,” the ALJ is required to explain how “the other most 8 persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. 9 § 404.1520c(b)(3).

10 The parties disagree over whether Ninth Circuit case law continues to be 11 controlling in light of the amended regulations, specifically whether the “clear and 12 convincing” and “specific and legitimate” standards still apply. ECF No. 19 at 13-

13 14; ECF No. 20 at 9-11. “It remains to be seen whether the new regulations will 14 meaningfully change how the Ninth Circuit determines the adequacy of [an] ALJ’s 15 reasoning and whether the Ninth Circuit will continue to require that an ALJ 16 provide ‘clear and convincing’ or ‘specific and legitimate reasons’ in the analysis

17 of medical opinions, or some variation of those standards.” Gary T. v. Saul, No. 18 EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. Cal. June 29, 19 2020) (citing Patricia F. v. Saul, No. C19-5590-MAT, 2020 WL 1812233, at *3

20 (W.D. Wash. Apr. 9, 2020)). “Nevertheless, the Court is mindful that it must defer 1 to the new regulations, even where they conflict with prior judicial precedent, 2 unless the prior judicial construction ‘follows from the unambiguous terms of the

3 statute and thus leaves no room for agency discretion.’” Gary T., 2020 WL 4 3510871, at *3 (citing Nat'l Cable & Telecomms. Ass'n v. Brand X Internet 5 Services, 545 U.S. 967, 981-82 (2005); Schisler v. Sullivan, 3 F.3d 563, 567-58 (2d 6 Cir. 1993) (“New regulations at variance with prior judicial precedents are upheld

7 unless ‘they exceeded the Secretary’s authority [or] are arbitrary and 8 capricious.’”). 9 There is not a consensus among the district courts as to whether the “clear

10 and convincing” and “specific and legitimate” standards continue to apply. See, 11 e.g., Kathleen G. v. Comm'r of Soc. Sec., 2020 WL 6581012, at *3 (W.D. Wash. 12 Nov. 10, 2020) (applying the specific and legitimate standard under the new

13 regulations); Timothy Mitchell B., v. Kijakazi, 2021 WL 3568209, at *5 (C.D. Cal. 14 Aug. 11, 2021) (stating the court defers to the new regulations); Agans v. Saul, 15 2021 WL 1388610, at *7 (E.D. Cal. Apr. 13, 2021) (concluding that the new 16 regulations displace the treating physician rule and the new regulations control);

17 Madison L. v. Kijakazi, No. 20-CV-06417-TSH, 2021 WL 3885949, at *4-6 (N.D. 18 Cal. Aug. 31, 2021) (applying only the new regulations and not the specific and 19 legitimate nor clear and convincing standard). For the sake of consistency in this

20 District, the Court adopts the rationale and holding articulated on the issue in 1 Emilie K. v. Saul, No. 2:20-cv-00079-SMJ, 2021 WL 864869, *3-4 (E.D. Wash. 2 Mar. 8, 2021), appeal docketed, No. 21-35360 (9th Cir. May 10, 2021). In Emilie

3 K., this Court held that the ALJ did not err in applying the new regulations over 4 Ninth Circuit precedent, because the result did not contravene the Administrative 5 Procedure Act’s requirement that decisions include a statement of “findings and 6 conclusions, and the reasons or basis therefor, on all the material issues of fact,

7 law, or discretion presented on the record.” Id. at *4 (citing 5 U.S.C. § 557(c)(A)). 8 This rationale has been adopted in other cases with this Court. See, e.g., Jeremiah 9 F. v. Kijakazi, No. 2:20-CV-00367-SAB, 2021 WL 4071863, at *5 (E.D. Wash.

10 Sept. 7, 2021). Nevertheless, it is not clear that the Court’s analysis in this matter 11 would differ in any significant respect under the specific and legitimate standard 12 set forth in Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).

13 1. Dr. Jamison 14 In December 2019, Dr. Jamison completed a physical residual functional 15 capacity statement and rendered an opinion of Plaintiff’s level of functioning. Tr. 16 547-50. Dr. Jamison reported Plaintiff’s diagnoses were hypertension, severe

17 hypogonadism, morbid obesity, lower extremity edema, GERD with esophagitis, 18 intermittent asthma, generalized anxiety, major depression, bilateral degenerative 19 joint disease of the knees, and bilateral (right greater than left) wrist tendonitis. Tr.

20 547. He opined Plaintiff’s prognosis was poor. Id. He reported Plaintiff’s most 1 significant clinical findings were chronic anxiety with debilitating depression due 2 to lost mobility and ability to work; he reported Plaintiff’s impairments, symptoms

3 and limitations have lasted since 2015 “continuously” and that depression, anxiety, 4 and a somatoform disorder affect his physical conditions and/or contribute to the 5 severity of his symptoms and physical limitations. Id. 6 Dr. Jamison opined Plaintiff’s pain is frequently severe enough to interfere

7 with the attention and concentration needed to perform simple work tasks, and that 8 his experience of stress is constantly severe enough to interfere with the attention 9 and concentration needed to perform simple work tasks. Id. He estimated Plaintiff

10 could not walk a city block without rest or pain, he could not walk a city block on 11 rough or uneven ground, he could not climb steps without use of a handrail at a 12 reasonable pace, and he had problems with balance when ambulating. Tr. 548. He

13 opined Plaintiff must lie down or recline about four hours in an eight hour workday 14 due to fatigue, pain, and stress; he can sit a total of about three hours and stand a 15 total of less than an hour in an eight hour workday; he would require unscheduled 16 breaks every hour for fifteen to thirty minutes before returning to work; he should

17 elevate his legs above heart level four hours during an eight hour day; and he must 18 use a cane or wheelchair while engaging in occasional standing or walking. Tr. 19 548-49.

20 1 He opined Plaintiff could occasionally and rarely (both are checked) lift ten 2 pounds but should never lift more than 15 pounds; he could frequently lift five

3 pounds; he could occasionally carry less than five pounds, rarely carry five pounds 4 and should never carry 10 pounds or more; he could use his right hand, arm, and 5 fingers one percent of the time in an eight hour day for grasping, turning, fine 6 manipulation, and reaching including overhead; he could use his left hand, arm,

7 and fingers five percent of the time. Tr. 549. Dr. Jamison further opined Plaintiff 8 should not push or pull arm or leg controls; he could never climb ladders, ropes, or 9 scaffolds, and should rarely climb stairs and ramps. Tr. 550. He opined “memory

10 lapses, obesity” would also affect Plaintiff’s ability to work at a regular job; and 11 that due to physical and/or mental limitations he would be off task more than 30 12 percent in an eight hour workday and would likely be absent from work five days

13 or more; he would be less than 50 percent as efficient as an average worker; and he 14 would be unable to obtain and retain work in a competitive work environment 15 eight hours a day five days a week. Id. The ALJ found Dr. Jamison’s opinion 16 unpersuasive. Tr. 25.

17 The ALJ found that Dr. Jamison’s assessment was extreme and unsupported 18 by Plaintiff’s record and limited treatment. Id. Supportability is one of the most 19 important factors an ALJ must consider when determining how persuasive a

20 medical opinion is. 20 C.F.R. § 404.1520c(b)(2). The more relevant objective 1 evidence and supporting explanations that support a medical opinion, the more 2 persuasive the medical opinion is. 20 C.F.R. § 404.1520c(c)(1). Here, Dr.

3 Jamison indicated he based his opinion on Plaintiff’s “history and medical file, 4 progress and office notes, physical examinations, psychological evaluations and his 5 personal observation of this patient.” Tr. 550. However, as discussed supra, aside 6 from morbid obesity, the ALJ reasonably found Plaintiff’s clinical examinations

7 were generally unremarkable, and records showed other impairments were 8 generally controlled by treatment. 9 A physician’s opinion may also be rejected if it is unsupported by the

10 physician’s treatment notes. Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 11 2003). Here, there is no indication in the medical record, including Dr. Jamison’s 12 treatment notes, that Plaintiff should elevate his legs for hours a day or that he

13 required a cane, wheelchair, or any assistive device. See, e.g., Tr. 277, 293. In 14 April 2018, for example, Dr. Jamison reported Plaintiff was doing better, was 15 going to start physical therapy in the water due to his knees, and that he had been 16 losing weight on medication. Tr. 474. At a psychological evaluation in October

17 2018, the examiner noted Plaintiff did not use any assistive devices, that he 18 reported walking in the woods helped his anxiety, and he reported he did not 19 require any assistance with self-care such as showering. Tr. 509-11. In September

20 2018, Plaintiff reported his left knee felt good with hardly any pain, although his 1 right knee continued to bother him; upon physical exam no edema was noted. Tr. 2 515-16. In March 2018, Dr. Jamison noted Plaintiff was working with

3 endocrinology to lose weight; he recommended bariatric surgery, noting that “if he 4 were able to lose weight, he could return to work, and he could probably change 5 some of the endocrine disorders.” Tr. 472. Although Dr. Jamison indicated 6 Plaintiff had limitations in both arms on the December 2019 form, records show

7 only one report of right wrist pain for two days in July 2019; Dr. Jamison noted 8 some tenderness on exam at that time and recommended a wrist brace, and there is 9 no evidence of follow up treatment for this issue. Tr. 573.

10 Dr. Jamison’s notes from the office visit where he completed Plaintiff’s 11 disability form in December 2019 also show a generally normal physical exam, 12 with mild/moderate distress noted due to anxiety, right wrist tenderness and pain,

13 and normal upper and lower extremity strength. Tr. 577. Dr. Jamison’s treatment 14 notes indicate Plaintiff was having difficulty with symptoms of anxiety, right knee 15 pain, hypertension, and in terms of obesity that he was “not really stable, however 16 not really able to help more than we are”; he did not, however, describe need for an

17 assistive device, that Plaintiff was suffering from debilitating depression, or 18 suggest the limitations he indicated on the disability form. Tr. 575-76. The ALJ 19 reasonably concluded that Dr. Jamison’s 2019 opinion was not supported by or

20 consistent with the medical record. 1 Even if this evidence could be interpreted more favorably to Plaintiff, if it is 2 susceptible to more than one rational interpretation, the ALJ’s ultimate conclusion

3 must be upheld. Burch, 400 F.3d at 679. As lack of support in the medical record 4 was a clear and convincing reason to give less weight to Plaintiff’s subjective 5 symptoms complaints, supra, therefore the ALJ’s finding that Dr. Jamison’s 6 December 2019 medical opinion is unsupported for the same reason is also

7 supported by substantial evidence. 8 The ALJ also found the opinions of Dr. Fitterer and Dr. Alto more 9 persuasive than Dr. Jamison’s opinion. Tr. 21, 23. In November 2018, Dr.

10 Fitterer reviewed Plaintiff’s records and opined that due to “morbid obesity, BMI 11 54+, hypogonadism, R knee, [and] severe OSA [obstructive sleep apnea],” Plaintiff 12 could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds,

13 and stand and walk about six hours in an eight hour day and sit about six hours in 14 an eight hour day; he should never climb ladders, ropes, or scaffolds, but could 15 occasionally climb ramps and stairs; he could frequently balance, occasionally, 16 stoop, kneel, and crouch but should never crawl; he should avoid concentrated

17 exposure to fumes, odors, dusts, poor ventilation, and he should avoid even 18 moderate exposure to hazards. Tr. 74-75, 90-91. Dr. Fitterer noted Plaintiff’s 19 “severe obesity [was] considered” and that “Plaintiff has some knee problems

20 although not totally defined [sic] is still ambulating without assistive device,” and 1 explained “he has no muscle weakness or neurological findings and in spite of his 2 obesity can still function at a light level for work.” Tr. 75.

3 In February 2019, Dr. Alto reviewed Plaintiff’s records and affirmed Dr. 4 Fitterer’s assessment, explaining that Dr. Fitterer’s opinion was “consistent and 5 supported by evidence,” and adding that Plaintiff “has dependent edema [bilateral 6 lower extremities]. He has [history of atrial fibrillation] possibly related to

7 drinking energy drinks. 300 pound weight gain in 5 years. Knee pain but normal 8 MRI right knee. OSA.” Tr. 91. The ALJ found these opinions persuasive. Tr. 21, 9 23.

10 The ALJ found the November 2018 opinion of Dr. Fitterer and the February 11 2019 opinion of Dr. Alto persuasive because “there has been no evidence obtained 12 since that would alter or significantly modify them, and they continue to be

13 consistent with the [Plaintiff’s] unremarkable examinations.” Tr. 21. Plaintiff 14 argues that the ALJ erred by adopting the opinions of Dr. Fitterer and Dr. Alto 15 “based upon the incorrect assertion that there are no subsequent records which 16 contradict their findings,” because they did not review “treatment records from

17 Kaiser-Permanente up to December 2019.” ECF No. 19 at 15-16. However, each 18 record Plaintiff points to in support of his argument is a duplicate of Columbia 19 Medical Associates records found elsewhere in the administrative record, which

20 Dr. Fitterer and Dr. Alto had the opportunity to review. See ECF No. 19 at 15-16 1 (citing Tr. 622, 625 (May 2017 office visit with Columbia Medical Associates, 2 duplicate of Tr. 293, 296); Tr. 642, 644 (August 2017 office visit with Columbia

3 Medical Associates, duplicate of Tr. 308, 310); Tr. 634 (February 2018, office visit 4 with Columbia Medical Associates, duplicate of Tr. 300); Tr. 627, 629-30 (August 5 2018 office visit with Columbia Medical Associates, duplicate at Tr. 499-503)). 6 Plaintiff’s is not entitled to remand on this basis.

7 While Plaintiff argues that the reviewing doctors did not have the 8 opportunity to review Dr. Jamison’s December 2019 disability form, ECF No. 19 9 at 15, as explained supra substantial evidence supports the ALJ’s finding that Dr.

10 Jamison’s opinion was not supported by or consistent with the longitudinal medical 11 record, and Plaintiff is also not entitled to remand on this basis. 12 2. Dr. Chupurdia

13 In October 2018, Dr. Chupurdia conducted a psychological evaluation and 14 rendered an opinion of Plaintiff’s level of functioning. Tr. 509-12. Dr. Chupurdia 15 diagnosed Plaintiff with general anxiety disorder and panic disorder with 16 agoraphobia. Tr. 512. Dr. Chupurdia opined Plaintiff’s prognosis “is fair” but that

17 “psychological symptoms appear to be considerably impacting his daily living 18 activities and level of functioning at this point.” Tr. 512. She opined his “ability 19 to interact with coworkers and the public is likely moderately impaired” and that

20 due to his anxiety and tendency to isolate himself from others, his ability to 1 maintain attendance in the workplace is moderately impaired.” Id. She further 2 opined his ability to complete a normal workday or workweek without interruption

3 from mood symptoms is likely moderately impaired; and “his ability to deal with 4 the usual stress encountered in the workplace is moderately impaired if it involves 5 being around other individuals.” Id. The ALJ found Dr. Chupurdia’s opinion 6 somewhat persuasive. Tr. 24.

7 First, the ALJ noted that while Dr. Chupurdia’s opinion “was based on an in- 8 person examination and was the only mental health evaluation of record,” it was 9 only somewhat persuasive because it was “essentially based only on the claimant’s

10 subjective reports.” Supportability is one of the most important factors an ALJ 11 must consider when determining how persuasive a medical opinion is. 20 C.F.R. § 12 404.1520c(b)(2). The more relevant objective evidence and supporting

13 explanations that support a medical opinion, the more persuasive the medical 14 opinion is. 20 C.F.R. § 404.1520c(c)(1). Here, while Dr. Chupurdia indicated she 15 had reviewed two of Dr. Jamison’s treatment notes, she also noted that “unless 16 otherwise stated, all historical information in this evaluation is based on

17 [Plaintiff’s] statements during the evaluation.” Tr. 509. The ALJ noted Plaintiff’s 18 reports to Dr. Chupurdia that his anxiety had worsened with his mother’s death the 19 month before, but that it had previously been under control with medication, which

20 is consistent with the record, as discussed supra. Tr. 21. Dr. Chupurdia also 1 indicated generally normal findings upon mental status exam, and opined Plaintiff 2 had “clear ability to reason and understand” and “adaption skills.” Tr. 512. She

3 observed his remote memory, recent memory, and immediate memory were within 4 normal limits, and that “sustained concentration and persistence are adequate based 5 on the brief concentration tasks of this evaluation.” Id. An ALJ is not obliged to 6 credit medical opinions that are unsupported by the medical source’s own data

7 and/or contradicted by the opinions of other examining medical sources. 8 Tommasetti, 533 F.3d at 1041. Based on generally normal mental status findings 9 and the record as a whole, the ALJ reasonably found Dr. Chupurdia’s opinion

10 regarding Plaintiff’s limitations was “essentially based only on the claimant’s 11 subjective reports.” 12 Next, the ALJ found that Dr. Chupurdia’s “indications [Plaintiff was]

13 ‘moderately impaired’ are vague and undefined for the specifics of assessing a 14 functional mental capacity.” Tr. 24. As discussed in relation to Dr. Jamison supra, 15 a medical opinion may be rejected by the ALJ if it is conclusory or inadequately 16 supported. Here, Dr. Chupurdia did not specify what she meant by moderate or

17 otherwise explain the limitations, and the ALJ reasonably concluded Dr. 18 Chupurdia’s opinion was vague and undefined. 19 The ALJ also found the psychological expert testimony of Dr. Toews more

20 persuasive than Dr. Chupurdia’s opinion. Tr. 23-24. At the hearing, Dr. Toews 1 summarized Plaintiff’s medical health record in regard to mental health. Tr. 40-44. 2 He included a summary of Dr. Chupurdia’s evaluation, noting her findings of

3 moderate limitations in dealing with the public and coworkers, completing the 4 work-week, dealing with work stress, and being around other people. Tr. 41-42. 5 He testified that Plaintiff was diagnosed with anxiety but did well on medication, 6 including clonazepam and venlafaxine, throughout the record. Tr. 39-40. He

7 noted that Plaintiff had a temporary worsening of his anxiety due to grief and 8 bereavement, and that he stopped exercising and going to counseling around that 9 time. Tr. 40-41. Dr. Toews opined that based on his review of the records,

10 Plaintiff’s primary difficulty was social anxiety disorder. Tr. 42. He opined 11 Plaintiff had no cognitive limitation, and otherwise had moderate limitations; he 12 explained Plaintiff could likely carry out simple and moderately complex tasks and

13 maintain concentration and persistence on such tasks for two hour intervals 14 between scheduled breaks; he should not work at a fast paced production rate of 15 pace, and he could work in a predictable environment with “seldom change,” and 16 only superficial contact with the public. Tr. 42-44.

17 The ALJ found Dr. Toews testimony persuasive because it was consistent 18 with the Plaintiff’s record and he referenced specific exhibits in supporting his 19 opinion, and because Dr. Toews is familiar with the Social Security disability

20 criteria and had Plaintiff’s entire record for review. Tr. 24. Consistency and 1 supportability are the most important factors an ALJ must consider when 2 determining how persuasive a medical opinion is. 20 C.F.R. § 404.1520c(b)(2).

3 The more consistent an opinion is with the evidence from other sources, the more 4 persuasive the opinion is. 20 C.F.R. § 404.1520c(c)(2). The more relevant 5 objective evidence and supporting explanations that support a medical opinion, the 6 more persuasive the medical opinion is. 20 C.F.R. § 404.1520c(c)(1). Here, the

7 ALJ noted Dr. Toews had the opportunity to review the record as a whole and he 8 provided a summary of the record at the hearing along with his opinion, which he 9 supported by citation to the record. Tr. 24. While Plaintiff argues Dr. Toews

10 should not be given more weight than Dr. Chupurdia, as explained supra, the ALJ 11 reasonably concluded Dr. Chupurdia based her opinion on Plaintiff’s subjective 12 reports.

13 Moreover, an ALJ may consider a medical provider’s familiarity with 14 “disability programs and their evidentiary requirements” when evaluating a 15 medical opinion. Orn v. Astrue, 495 F.3d 625, 631. The extent to which a medical 16 source is “familiar with the other information in [the claimant’s] case record” is

17 also relevant in assessing the weight of that source’s medical opinion. See 20 18 C.F.R. § 404.1527(c). Here, Dr. Toews reviewed the record in its entirety, and the 19 ALJ was able to question Dr. Toews to clarify the psychological expert’s responses

20 and opinion at the hearing, including Dr. Toews assessment of moderate 1 limitations, which he was not able to do with Dr. Chupurdia. Tr. 24; see Tr. 42-44. 2 Dr. Chupurdia indicated she reviewed only two of Dr. Jamison’s treatment records.

3 Tr. 509. While the record is not clear as to Dr. Chupurdia’s familiarity with Social 4 Security’s requirements, any error would be harmless as the ALJ gave other 5 reasons to reject the opinion. See Molina, 674 F.3d at 1115. The ALJ reasonably 6 found Dr. Chupurdia’s opinion only somewhat persuasive based on her mental

7 status findings and the record as a whole, including the testimony of Dr. Toews, 8 and the ALJ’s conclusions are supported by substantial evidence. 9 3. Other opinions

10 There are other medical opinions in the record, including the opinions of Dr. 11 Kester and Dr. Forsyth, and the medical expert testimony of Dr. Seligman. Tr. 23. 12 While Plaintiff mentions Dr. Seligman in his summary of hearing testimony and in

13 a footnote when discussing medical opinion evidence, he does not address the 14 opinions of Dr. Kester and Dr. Forsyth. See ECF No. 19 at 4, 16. The court 15 ordinarily will not consider matters on appeal that are not specifically and 16 distinctly argued in an appellant’s opening brief. See Carmickle v. Comm’r of Soc.

17 Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). Rather, the Court will 18 “review only issues which are argued specifically and distinctly.” Independent 19 Towers, 350 F.3d at 929. When a claim of error is not argued and explained, the

20 argument is waived. See id. at 929-30 (holding that party’s argument was waived 1 because the party made only a “bold assertion” of error, with “little if any analysis 2 to assist the court in evaluating its legal challenge”); see also Hibbs v. Dep’t of

3 Human Res., 273 F.3d 844, 873 n.34 (9th Cir. 2001) (finding an allegation of error 4 was “too undeveloped to be capable of assessment”). As Plaintiff failed to 5 specifically and distinctly argue any claim of error concerning the opinion of Dr. 6 Seligman, and did not discuss the reviewing psychologists, Plaintiff has waived

7 any arguments concerning these medical opinions, and the Court declines to 8 address them. 9 CONCLUSION

10 Having reviewed the record and the ALJ’s findings, the Court concludes the 11 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 12 Accordingly, IT IS HEREBY ORDERED:

13 1. Plaintiff’s Motion for Summary Judgment, ECF No. 19, is DENIED. 14 2. Defendant’s Motion for Summary Judgment, ECF No. 20, is GRANTED. 15 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 16 The District Court Executive is directed to file this Order, provide copies to

17 counsel, and CLOSE THE FILE. 18 DATED February 15, 2022. 19 s/Mary K. Dimke MARY K. DIMKE 20 UNITED STATES DISTRICT JUDGE