Passantino v. Kilakazi

• Court: District Court, N.D. California
• Decided: January 11, 2024
• Docket: 5:23-cv-00475
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 P.J.P., Case No. 23-cv-00475-SVK

8 Plaintiff, ORDER ON CROSS-MOTIONS FOR 9 v. SUMMARY JUDGMENT

10 KILOLO KILAKAZI, et al., Re: Dkt. Nos. 11, 15 11 Defendants.

12 Plaintiff appeals from the final decision of the Commissioner of Social Security, which 13 denied her applications for disability insurance benefits. The Parties have consented to the 14 jurisdiction of a magistrate judge. Dkt. 4, 9. For the reasons discussed below, the Court 15 GRANTS Plaintiff’s motion for summary judgment (Dkt. 11), DENIES Defendant 16 Commissioner’s cross-motion for summary judgment (Dkt. 15), and REMANDS this case for 17 further proceedings. 18 I. BACKGROUND 19 On or about October 22, 2020, Plaintiff filed applications for Title II disability insurance benefits. See Dkt. 10 (Administrative Record (“AR”)) 181-189. The claim was initially denied on 20 January 5, 2021 (AR 100-104) and denied on reconsideration on June 8, 2021 (AR 106-111). On 21 April 6, 2022 an Administrative Law Judge (“ALJ”) held a hearing. AR 33-62. On April 20, 22 2022, the ALJ denied Plaintiff’s claims. AR 12-32 (the “ALJ Decision”). The ALJ concluded 23 that Plaintiff has the following severe impairments: cervical and lumbar degenerative disc disease, 24 bilateral peripheral neuropathy in the hands, right shoulder impingement syndrome, and 25 cervicogenic headaches. AR 17. The ALJ found that Plaintiff does not have an impairment or 26 combination of impairments that meets or medically equals one of the listed impairments. AR 18. 27 The ALJ found that through the date last insured, Plaintiff had the residual functional capacity 1 (“RFC”) to perform light work with certain limitations. AR 19-26. The ALJ determined that 2 Plaintiff was unable to perform her past relevant work as a produce stock clerk. AR 26. However, 3 the ALJ found that there were other jobs that exist in significant numbers in the national economy 4 that Plaintiff can perform, such as Cashier II, Marker, and Routing Clerk. AR 26-27. 5 Accordingly, the ALJ found that Plaintiff was not under a disability, as defined in the Social 6 Security Act, from April 21, 2019 (the alleged onset date) through the date of the ALJ Decision. AR 27-28. 7 The Appeals Council subsequently denied review of the ALJ Decision. AR 1-6. Plaintiff 8 timely filed an action in this District, seeking review of the ALJ Decision. Dkt. 1. 9 In accordance with Civil Local Rule 16-5, the parties filed cross-motions for summary 10 judgment. Dkt. 11 (Plaintiff’s motion for summary judgment); Dkt. 15 (Defendant’s cross-motion 11 for summary judgment). The cross-motions for summary judgment are now ready for decision 12 without oral argument. 13 II. ISSUES FOR REVIEW 14 1. Did the ALJ properly evaluate the medical evidence in assessing Plaintiff’s 15 residual functional capacity? 16 2. Did the ALJ properly evaluate Plaintiff’s credibility? 17 III. STANDARD OF REVIEW 18 This Court is authorized to review the Commissioner’s decision to deny disability benefits, 19 but “a federal court’s review of Social Security determinations is quite limited.” Brown-Hunter v. 20 Colvin, 806 F.3d 487, 492 (9th Cir. 2015); see also 42 U.S.C. § 405(g). Federal courts “leave it to 21 the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the 22 record.” Brown-Hunter, 806 F.3d at 492 (internal quotation marks and citation omitted). 23 The Commissioner’s decision will be disturbed only if it is not supported by substantial 24 evidence or if it is based on the application of improper legal standards. Id. at 492. “Under the 25 substantial-evidence standard, a court looks to an existing administrative record and asks whether 26 it contains sufficient evidence to support the agency’s factual determinations,” and this threshold 27 is “not high.” Biestek v. Berryhill, 587 U.S. --, 139 S. Ct. 1148, 1154 (2019) (internal quotation 1 marks, citation, and alteration omitted); see also Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 2 996, 1002 (9th Cir. 2015) (“Substantial evidence” means more than a mere scintilla but less than a 3 preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to 4 support a conclusion”) (internal quotation marks and citations omitted). The Court “must consider 5 the evidence as a whole, weighing both the evidence that supports and the evidence that detracts 6 from the Commissioner’s conclusion.” Rounds, 807 F.3d at 1002 (internal quotation marks and 7 citation omitted). Where the evidence is susceptible to more than one rational interpretation, the 8 Court must uphold the ALJ’s findings if supported by inferences reasonably drawn from the 9 record. Id. 10 Even if the ALJ commits legal error, the ALJ’s decision will be upheld if the error is 11 harmless. Brown-Hunter, 806 F.3d at 492. But “[a] reviewing court may not make independent 12 findings based on the evidence before the ALJ to conclude that the ALJ’s error was harmless” and 13 is instead “constrained to review the reasons the ALJ asserts.” Id. (internal quotation marks and 14 citation omitted). 15 IV. DISCUSSION 16 A. Issue One: Evaluation of the medical evidence in assessing RFC 17 Plaintiff argues that the ALJ erroneously evaluated the medical evidence in concluding that 18 Plaintiff had the RFC to perform light work with additional limitations. Dkt. 11 at 17-22. As 19 stated above, Plaintiff’s application for Social Security disability benefits was filed on or about 20 October 22, 2020. AR 181-189. Under the Social Security Administration regulations that apply 21 in this case,1 the ALJ was required to consider all medical opinions and “evaluate their 22 persuasiveness” based on the following factors: (1) supportability; (2) consistency; (3) 23 relationship with the claimant; (4) specialization; and (5) “other factors.” 20 C.F.R. 24 §404.1520c(a)-(c). The two “most important factors for determining the persuasiveness of 25

26 1 New regulations went into effect on March 27, 2017, which include a change in how medical evidence must be evaluated. See V.W. v. Comm'r of Soc. Sec., No. 18-cv-07297-JCS, 2020 WL 27 1505716, at *13 (N.D. Cal. Mar. 30, 2020) (quoting 20 C.F.R. § 416.920c(a)); see also 20 C.F.R. 1 medical opinions are consistency and supportability,” and the ALJ is required to explicitly address 2 supportability and consistency in her decision. Revisions to Rules, 82 Fed. Reg. 5844-01 at 5853; 3 20 C.F.R. § 404.1520c(b)(2); see also Woods v. Kijakazi, 32 F.4th 785, 791-793 (9th Cir. 2022). 4 The ALJ may, but is not required to, explain how she considered the remaining three factors. 20 5 C.F.R. § 404.1520c(a)(2). The new regulations “displace [the Ninth Circuit's] longstanding case 6 law” requiring an ALJ to articulate “specific and legitimate reasons” for rejecting a treating 7 physician's opinion where the opinion is contradicted by other medical opinions. Woods, 32 F.4th 8 at 787. 9 “Supportability means the extent to which a medical source supports the medical opinion 10 by explaining the ‘relevant ... objective medical evidence.’ ” Woods, 32 F.4th at 791-92; see 11 also 20 C.F.R. §§ 404.1520c(c)(1) (“The more relevant the objective medical evidence and 12 supporting explanations presented by a medical source are to support his or her medical opinion(s) 13 or prior administrative medical finding(s), the more persuasive the medical opinions or prior 14 administrative medical finding(s) will be”). “Consistency means the extent to which a medical 15 opinion is ‘consistent ... with the evidence from other medical sources and nonmedical sources in 16 the claim.’ ” Woods, 32 F.4th at 792; see also 20 C.F.R. §§ 404.1520c(c)(2) (“The more consistent 17 a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 18 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) 19 or prior administrative medical finding(s) will be”). 20 As with all other determinations made by the ALJ, the ALJ's persuasiveness explanation 21 must be supported by substantial evidence. See Woods, 32 F.4th at 792; see also Azia B. v. 22 Kijakazi, No. 22-cv-01731-TSH, 2023 WL 1442841, at *7 (N.D. Cal. Feb. 1, 2023). 23 In this case, Plaintiff does not directly challenge the ALJ’s evaluation of the 24 persuasiveness of the various medical opinions in the record. Instead, Plaintiff argues that 25 although the ALJ credited the opinions of S. Amon, M.D. (a state agency medical consultant) and 26 Thomas Paul Miles, M.D. (an orthopedist who conducted qualified medical examinations of 27 Plaintiff in connection with her workers’ compensation claim), the ALJ did not incorporate all of 1 The ALJ made the following RFC determination:

2 [T]he claimant has the residual functional capacity to perform light work as defined in 3 20 CFR 404.1567(b) except that she can frequently climb ladders, robes, or scaffolds, frequently stoop, and frequently crawl. She can perform work that requires frequent 4 head rotation, frequent overhead reaching, and frequent handling.

5 AR 19. 20 CFR 404.1567(b), cited by the ALJ, defines the exertional limitations of light work as 6 involving “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects 7 weighing up to 10 pounds” can require “a good deal of walking or standing, or when it involves 8 sitting most of the time with some pushing and pulling of arm or leg controls.” As for 9 nonexertional limitations, “many unskilled light jobs do not entail fine use of the fingers” but 10 instead “require gross use of the hands to grasp, hold, and turn objects” SSR 83-14, 1983 WL 11 31254, at *4 (Jan. 1, 1983). As a result, “[a]ny limitation of these functional abilities must be 12 considered very carefully to determine its impact on the size of the remaining occupational base of 13 a person who is otherwise found functionally capable of light work.” Id. 14 The ALJ is responsible for “translating and incorporating” the evidence of record “into a 15 succinct RFC.” Rounds, 807 F.3d at 1006; 20 C.F.R. § 404.1545(a)(1) (requiring that RFC 16 assessment be “based on all the relevant evidence”); 20 C.F.R. § 404.1546(c) (stating that ALJ is 17 “responsible for assessing [the] residual functional capacity.”). “In determining a claimant’s RFC, 18 an ALJ must consider all relevant evidence in the record, including … medical records, lay 19 evidence, and the effects of symptoms that are reasonably attributed to a medically determinable 20 impairment.” Leonard v. Colvin, 633 Fed. Appx. 362, 364 (9th Cir. 2015) (internal quotation 21 marks and citations omitted). “[A]n RFC that fails to take into account a claimant’s limitations is 22 defective.” Id. (citing Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). 23

24 1. Dr. Amon 25 According to the ALJ, Dr. Amon opined that Plaintiff was “limited to a reduced range of 26 light exertion including frequent climbing of ladders, ropes, and scaffolds [and] occasional 27 reaching over with the bilateral upper extremities.” AR 25. The ALJ found these opinions 1 “partially persuasive.” Id. The ALJ explained that “Dr. Amon’s opinion is generally supported by 2 the provided analysis of the medical evidence available at the time of review (Ex. 3A); however, 3 the totality of the medical evidence particularly the claimant’s lumbar and cervical MRI, 4 EMG/NCS, Dr. Miles’ examination findings, and Dr. Athanassious’ findings are more consistent 5 with the additional postural and manipulative limits assessed in” the ALJ’s RFC determination. 6 Id. 7 In Exhibit 3A, cited by the ALJ, Dr. Amon expressly stated that Plaintiff was “Limited” in 8 reaching “Left Overhead” and “Right Overhead.” AR 93. The ALJ’s RFC nevertheless states that 9 Plaintiff can perform “frequent overhead reaching.” AR 19. The Commissioner concedes that the 10 ALJ’s RFC included greater overhead reaching abilities and that the ALJ did not specifically 11 address this particular limitation in her analysis of Dr. Amon’s functional assessment. Dkt. 15 at 12 12. 13 The ALJ erred in failing to incorporate Dr. Amon’s opinion that Plaintiff was “limited” in 14 overhead reaching and instead finding Plaintiff had the RFC to perform “frequent overhead 15 reaching,” or to explain why she did not incorporate this limitation. The Commissioner argues 16 that any error by the ALJ in not incorporating a limitation on overhead reaching into Plaintiff’s 17 RFC was harmless because Plaintiff could still perform the position of cashier even with that 18 limitation. See Dkt. 15 at 12-13 (arguing that cashier position does not require overhead reaching, 19 citing Gutierrez v. Colvin, 844 F.3d 804, 806-07 (9th Cir. 2016)). However, the hypothetical 20 posed by the ALJ to the vocational expert (“VE”) at the hearing expressly involved an individual 21 who could perform “frequent overhead reaching.” AR 57. Moreover, the VE engaged in the 22 following exchange with Plaintiff’s counsel at the hearing:

23 Q. Okay. If the individual could only – could less than frequently reach or handle, would 24 that also eliminate the jobs you references (sic) earlier, Cashier, Marker and Routing Clerk? 25 A: Yes, it would. 26 AR 60. Although the Commissioner argues against inferring that a requirement for “frequent 27 reaching” is synonymous with “frequent overhead reaching,” even accepting this argument, the 1 Court cannot conclude from the present record that the ALJ’s failure to incorporate limitations on 2 overhead reaching was harmless. 3 4 2. Dr. Miles 5 Dr. Miles opined that Plaintiff should be precluded from prolonged and repetitive bending 6 and rotation of the head, prolonged and very heavy lifting activities, repetitive and forceful work 7 above the plane of her right shoulder. AR 475. Dr. Miles later added a limitation of no forceful 8 gripping on the right. AR 657. The ALJ found Dr. Miles’ opinions to be “somewhat vague, but 9 generally persuasive as they are supported by his own examination findings … and are consistent 10 with the diagnostic and clinical findings, particularly the claimant’s lumbar and cervical MRIs and 11 Dr. Athanassious’ examination.” AR 25. 12 The ALJ’s RFC permitted frequent head rotation, frequent overhead reaching, and frequent 13 handling. AR 19. Plaintiff argues that the ALJ’s RFC failed to take into account Dr. Miles’ 14 opinions regarding Plaintiff’s limitations in these areas. Dkt. 11 at 18-20. The Commissioner 15 argues that the ALJ was not obligated to assess Plaintiff’s RFC using Dr. Mills’ “vague terms” 16 such as “repetitive,” “forceful,” or “prolonged” or to interpret those terms in the way Plaintiff now 17 seeks. Dkt. 15 at 13-14. 18 The ALJ failed to explain how she incorporated the limitations identified by Dr. Miles into 19 the RFC or, alternatively, why she chose not to do so. The ALJ referred to Dr. Miles’ opinions as 20 “somewhat vague” but did not explain how she interpreted the terms he used as she formulated the 21 RFC. The hypothetical posed by the ALJ to the VE concerned an individual who could perform 22 “frequent” head rotation, overhead reaching, and handling and did not address any of the 23 limitations found by Dr. Miles (in his words or analogous terms). AR 57. Given that the ALJ 24 found Dr. Miles’ opinions to be “somewhat vague, but generally persuasive” (AR 25), the Court 25 finds error in the ALJ’s failure to incorporate the limitations found by Dr. Miles into the RFC. For 26 similar reasons as those discussed above with respect to the ALJ’s failure to incorporate Dr. 27 Amon’s limitations, including the VE’s testimony that the jobs of Cashier, Marker, and Routing 1 Court cannot conclude this error was harmless. 2 3 3. Conclusion on evaluation of medical evidence 4 Accordingly, for the reasons discussed above, on the issue of the ALJ’s evaluation of the 5 medical evidence, and specifically on the ALJ’s failure in evaluating Plaintiff’s RFC to take into 6 account Plaintiff’s limitations as reflected in the medical opinions credited by the ALJ, the Court 7 GRANTS Plaintiff’s motion and DENIES the Commissioner’s cross-motion. 8 B. Issue Two: Evaluation of Plaintiff’s credibility 9 Plaintiff argues that the ALJ failed to satisfy the requirement that she provide clear and 10 convincing reasons to reject Plaintiff’s pain and symptom testimony. Dkt. 11 at 10-17. The ALJ’s 11 decision stated:

12 After careful consideration of the evidence, I find that the claimant’s medically 13 determinable impairments could reasonably be expected to cause some of the alleged symptoms, but that the claimant’s statements concerning the intensity, persistence and 14 limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. 15 AR 20. After discussing portions of the medical record, the ALJ later stated that “[t]he claimant’s 16 own subjective reports of symptom intensity, persistence, and limiting effects do not support her 17 allegations of disabling limitations,” citing statements Plaintiff made during a 2019 qualified 18 medical examination and in two exertional activities questionnaires. AR 23 (citing Exs. 18F, 4E, 19 and 8E). 20 “When a claimant presents objective medical evidence establishing an impairment that 21 could reasonably produce the symptoms of which she complains, an adverse credibility finding 22 must be based on clear and convincing reasons,” unless there is affirmative evidence of 23 malingering. Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022) (internal quotation marks and 24 citations omitted). The Parties agree that the Ninth Circuit requires that the ALJ’s reasons for 25 discounting Plaintiff’s allegations be “specific, clear, and convincing.” Dkt. 11 at 10; Dkt. 15 at 5. 26 Although the Parties agree on the applicable legal standard, they disagree about both the 27 bases upon which the ALJ discounted Plaintiff’s credibility and whether those bases were legally 1 sufficient. Plaintiff argues that “the majority of” the ALJ’s credibility analysis rests on Plaintiff’s 2 overall activities of daily living (“ADLs”). Dk. 11 at 15. The Commissioner agrees that the 3 ALJ’s credibility analysis was based on Plaintiff’s reported engagement in ADLs, but argues that 4 the ALJ also based her credibility determination on (1) “objective medical evidence that showed 5 some positive laboratory findings and clinical signs, but generally documented her retention of full 6 motor strength, normal gait, normal reflexes, and unassisted ambulation”; and (2) “treatment 7 records showing significant improvement with conservative treatment.” Dkt. 15 at 5. 8 A review of the ADL-related reports upon which the Parties agree the ALJ relied 9 demonstrates that the ALJ selectively quoted from those reports and did not reconcile 10 discrepancies between them in discounting Plaintiff’s credibility. For example, the ALJ’s 11 credibility determination included a statement that Plaintiff could climb one flight of stairs. 12 AR 23. In the ADLs section of report of the 2019 QME, the examiner stated:

13 Physical activities: She stands all day. She is walking all day. She sits for short 14 periods because when she gets up it is very painful. She is able to do one flight of stairs. 15 Ex. 18F at AR 1479. However, in an exertional questionnaire completed on November 13, 2020, 16 Plaintiff reported that she did not climb stairs. Ex. 4E at AR 229. And in an exertional 17 questionnaire completed on April 10, 2021, Plaintiff stated: “I occasionally go upstairs, but not 18 often as it irritates my lower back and causes plain.” Ex. 8E at AR 251. The ALJ’s credibility 19 determination did not address these later, and different, reports of Plaintiff’s ability to climb stairs. 20 As another example, the ALJ stated that Plaintiff’s exertional questionnaires reported that she does 21 “light cleaning including dusting, cleaning the bathroom, vacuuming, and washing dishes.” AR 22 23. However, the exertional questionnaires qualified these statements in ways not reflected in the 23 ALJ’s decision. See, e.g., Ex. 4E at AR 228 (stating that she spends time “doing light cleaning if 24 necessary”); Ex. 8E at AR 250 (stating that she “clean[s] a little”). Moreover, the ALJ’s summary 25 of Plaintiff’s exertional questionnaires omits much of her explanation of limitations in her ADLs. 26 See, e.g., Ex. 4E at AR 229 (“I spread out the chores so I don’t have to do everything in one 27 day.”); Ex. 8E at AR 251 (“I clean my own house but not all in one day. I do small things each 1 day, vacuum, dust, dishes. Takes 30 min — 1 hr.”); Ex. 8E at AR 252 (“I used to spend the whole 2 || day cleaning to get it over with, but now do little bits every day to avoid overdoing it and being in 3 || pain”). 4 In light of these problems with the ALJ’s analysis of Plaintiff's ADLs and the importance 5 of ADLs to the ALJ’s credibility analysis, the ALJ failed to offer clear and convincing reasons for 6 || discounting Plaintiff's credibility. The ALJ expressly premised her RFC determination in part on 7 || Plaintiffs alleged ADLs. See AR 26 (“the claimant reported that she does her own personal care, 8 drives, gardens, does all her household chores, prepares meals, shops, and goes out to eat with 9 || friends). Accordingly, the ALJ’s error in evaluating Plaintiffs credibility is not harmless. 10 Accordingly, for the reasons discussed above, on the issue of the ALJ’s evaluation of 11 Plaintiff's credibility, the Court GRANTS Plaintiff's motion and DENIES the Commissioner’s 12 || cross-motion. 13 || V.. CONCLUSION 14 For the foregoing reasons, the Court GRANTS Plaintiff's motion for summary judgment 3 15 and DENIES Defendant Commissioner’s cross-motion for summary judgment. It is not clear a 16 || from the record that the ALJ would be required to find Plaintiff disabled if all the evidence were 3 17 properly evaluated, and therefore remand is appropriate. Luther v. Berryhill, 891 F.3d 872, 877- 18 78 (9th Cir. 2018). Accordingly, the Court REMANDS this case for further proceedings. 19 SO ORDERED. 20 || Dated: January 11, 2024 21 22 Sees veYl SUSAN VAN KEULEN 23 United States Magistrate Judge 24 25 26 27 28