Perez v. O'Malley

Opinion

1 2 3 6 7 FIDEL R.P., Case No. 3:24-cv-02145-JSC

8 Plaintiff, ORDER REVERSING IN PART AND REMANDING FOR FURTHER v.

10 MARTIN J. O’MALLEY, Re: Dkt. Nos. 11, 13 Defendant. 11

12 13 Plaintiff seeks social security benefits for a combination of physical and mental 14 impairments including degenerative disc disease with chronic bilateral low back pain and bilateral 15 sciatica status-post distant multilevel lumbar decompression and fusion with radiculopathy; 16 neuropathy; asthma; obesity; high blood pressure; sleep apnea; and psychotic, depression, and 17 anxiety disorders in combination with methamphetamine use. (Administrative Record (“AR”) 20, 18 379.) Pursuant to 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial review of the final 19 decision by the Commissioner of Social Security denying his benefits claim. After careful 20 consideration of the parties’ briefing, the Court concludes oral argument is unnecessary, see N.D. 21 Cal. Civ. L.R. 7-1(b), REVERSES the ALJ’s decision in part and REMANDS for further 22 proceedings. The ALJ’s rejection of Plaintiff’s subjective symptom testimony as to his physical 23 impairments was not supported by clear and convincing reasons. 25 A. Procedural History 26 Pursuant to the Social Security Act, on October 15, 2020, Plaintiff filed applications under 27 Titles II and XVI for disability insurance benefits and supplemental security disability benefits 1 applications were denied initially and upon reconsideration. (AR 17, 180, 232.) Plaintiff 2 submitted a timely request for a hearing before an Administrative Law Judge (ALJ). (AR 260.) A 3 hearing was held on February 15, 2023 where Plaintiff and a vocational expert testified. (AR 65- 4 109.) On May 24, 2023, the ALJ issued an unfavorable decision finding Plaintiff was not disabled 5 within the meaning of the Social Security Act. (AR 17-36.) 6 Plaintiff filed a timely request for review with the Appeals Council, which the Appeals 7 Council denied. (AR 1-3.) Plaintiff thereafter filed the underlying action. In accordance with Civil 8 Local Rule 16-5, the parties filed cross briefs on appeal. (Dkt. Nos. 11, 13.1) 9 B. Issues for Review 10 1. Did the ALJ err in evaluating the medical evidence? 11 2. Did the ALJ err in evaluating Plaintiff’s subjective symptom testimony? 12 3. Did the ALJ err in failing to resolve apparent inconsistences between the vocational 13 expert’s testimony and the Dictionary of Occupational Titles? 15 A claimant is considered “disabled” under the Act if he meets two requirements. See 42 16 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must 17 demonstrate “an inability to engage in any substantial gainful activity by reason of any medically 18 determinable physical or mental impairment which can be expected to result in death or which has 19 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 20 423(d)(1)(A). Second, the impairment or impairments must be severe enough he is unable to do 21 his previous work and cannot, based on his age, education, and work experience, “engage in any 22 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 23 To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential 24 analysis, examining: (1) whether the claimant is engaging in “substantial gainful activity”; (2) 25 whether the claimant has a “severe medically determinable physical or mental impairment” or 26 combination of impairments that has lasted for more than 12 months; (3) whether the impairment 27 1 “meets or equals” one of the listings in the regulations; (4) whether, given the claimant’s RFC, he 2 can still do his “past relevant work”; and (5) whether the claimant “can make an adjustment to 3 other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on 4 other grounds; see 20 C.F.R. § 404.1520(a). 7 Under the regulations that apply to Plaintiff’s application, the Commissioner no longer 8 gives specific evidentiary weight to medical opinions, including the deference formerly given to 9 the opinions of treating physicians. Instead, the Commissioner evaluates the “persuasiveness” of 10 all medical opinions in the record based on: (1) supportability; (2) consistency; (3) relationship 11 with the claimant; (4) specialization; and (5) other factors, such as “evidence showing a medical 12 source has familiarity with the other evidence in the claim or an understanding of our disability 13 program’s policies and evidentiary requirements.” 20 C.F.R. § 404.1520c; see also Woods v. 14 Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022) (“For claims subject to the new regulations, the former 15 hierarchy of medical opinions—in which we assign presumptive weight based on the extent of the 16 doctor's relationship with the claimant—no longer applies.”). “Now, an ALJ’s decision, including 17 the decision to discredit any medical opinion, must simply be supported by substantial evidence.” 18 Woods, 32 F.4th at 787. 19 Supportability and consistency are the most important factors in evaluating the 20 persuasiveness of medical opinions. See Woods, 32 F.4th at 791 (citing 20 C.F.R. § 404.1520c(a)). 21 “Supportability means the extent to which a medical source supports the medical opinion by 22 explaining the relevant objective medical evidence.” Id. at 791-92 (cleaned up) (citing 20 C.F.R. § 23 404.1520c(c)(1)). “Consistency means the extent to which a medical opinion is consistent with the 24 evidence from other medical sources and nonmedical sources in the claim.” Id. at 792 (cleaned up) 25 (citing 20 C.F.R. § 404.1520c(c)(2)). The third factor—“relationship with the claimant”— 26 encompasses “the length and purpose of the treatment relationship, the frequency of examinations, 27 the kinds and extent of examinations that the medical source has performed, ... and whether the 1 (citing 20 C.F. R. § 404.1520c(c)(3)(i)–(v)). The ALJ must explain how she considered 2 supportability and consistency, and may, but is not required, to explain how she considered factors 3 three, four, and five. See id. at 792; see also 20 C.F.R. § 404.1520c(b)(2). 4 The “ALJ cannot reject an examining or treating doctor’s opinion as unsupported or 5 inconsistent without providing an explanation supported by substantial evidence.” Woods, 32 6 F.4th at 792 (cleaned up). “The agency must articulate how persuasive it finds all of the medical 7 opinions and explain how it considered the supportability and consistency factors in reaching these 8 findings.” Id. (cleaned up) (citing 20 C.F.R. §§ 404.1520c(b), 404.1520c(b)(2)). 9 A. Dr. Mathews 10 Plaintiff contends the ALJ erred in concluding the letters submitted by his treating 11 psychologist, Dr. Mathews, were unpersuasive. (AR 33 (discussing AR 816-818 (1/2/21 letter); 12 1469-1471 (11/15/21 letter)).) Plaintiff appears to take issue with the ALJ’s finding that Dr. 13 Mathews’ statements regarding Plaintiff’s mental limitations were not supported by particular 14 findings and were instead based on Dr. Mathews’ “beliefs,” and the ALJ’s conclusion that Dr. 15 Mathews’ opinions were inconsistent with the objective medical evidence as a whole.2 (AR 33.) 16 First, as to supportability, the ALJ found Dr. Mathews’ statement that “I believe with 17 reasonable professional certainty, that [Plaintiff’s] capacity to maintain sustained concentration 18 and attention in the context of a paid work position is compromised” was supported only “vaguely 19 by her ‘belief’” and “not well supported by particular findings.” (AR 33 (citing AR 817).) 20 Indeed, Dr. Mathews did not refer to any diagnosis, testing, or functional limitation finding to 21 support this statement. And Dr. Mathews’ own treatment notes do not document abnormalities 22 with Plaintiff’s cognitive functioning. (See, e.g., AR 1472, 1477, 1482, 1488, 1494, 1500, 1505, 23 1510, 1514, 1519, 1523, 1527.) To the extent Dr. Mathews was basing her statement on a 24 traumatic brain injury Plaintiff suffered at age six, the ALJ noted Plaintiff had obtained his GED 25 since then and sustained substantial gainful activity for years. (AR 33.) “The ALJ need not accept 26 2 Plaintiff does not appear to challenge the ALJ’s finding that Dr. Mathews’ statements regarding 27 Plaintiff’s physical limitations were outside her purview as a psychologist or the ALJ’s rejection 1 the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, 2 and inadequately supported by clinical findings.” Stiffler v. O’Malley, 102 F.4th 1102, 1107 (9th 3 Cir. 2024). The ALJ’s supportability finding here is supported by substantial evidence. 4 Second, as to consistency, the ALJ found the evidence did not support Dr. Mathews’ 5 statement that Plaintiff’s “reading ability” and “capacity for understanding and retention of what 6 he strives to read appears problematic” and that he has “what appears to be some processing 7 difficulties.” (AR 33, 817.) The ALJ noted the other evidence in the record, including an 8 assessment by his psychiatrist, was that he was of average intellect. (AR 33.) Indeed, the 9 examining psychologist opined in her May 9, 2021 report that Plaintiff’s “intellectual function 10 appeared to be within the average range,” his recent and remote memory were intact, his 11 concentration was within normal limits, and his ability to perform detailed and complex tasks was 12 “mildly impaired.” (AR 1049-1050.) Substantial evidence thus likewise supports the ALJ’s 13 conclusion that Dr. Mathews’ opinion was not consistent with the medical evidence as a whole. 14 The Court therefore finds no error as to the ALJ’s consideration of the medical evidence. 16 The Ninth Circuit has “established a two-step analysis for determining the extent to which 17 a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th 18 Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective medical 19 evidence of an underlying impairment which could reasonably be expected to produce the pain or 20 other symptoms alleged.” Id. “Second, if the claimant meets this first test, and there is no evidence 21 of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms 22 only by offering specific, clear and convincing reasons for doing so.” Lingenfelter v. Astrue, 504 23 F.3d 1028, 1036 (9th Cir. 2007) (cleaned up). If the ALJ’s assessment “is supported by 24 substantial evidence in the record, [courts] may not engage in second-guessing.” Thomas v. 25 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (cleaned up). 26 Applying the two-step analysis, the ALJ first determined Plaintiff’s “medically 27 determinable impairments could reasonably be expected to cause the alleged symptoms.” (AR 34.) 1 convincing reasons” for rejecting Plaintiff’s testimony regarding the severity of his symptoms, or 2 else find evidence of malingering. See Lingenfelter, 504 F.3d at 1036. The ALJ did not find 3 evidence of malingering, but found Plaintiff’s “statements concerning the intensity, persistence 4 and limiting effects of [his] symptoms are not entirely consistent with the medical evidence and 5 other evidence in the record for the reasons explained in this decision.” (AR 34.) 6 Plaintiff contends the ALJ erred in rejecting his subjective symptom testimony as to both 7 his mental and physical limitations. 8 A. Subjective Symptom Testimony as to Mental Impairments 9 The ALJ found Plaintiff’s “cognitive mental status evaluation findings quite inconsistent 10 with [his] allegations.” (AR 30.) Plaintiff contends the ALJ failed to support this finding with 11 specific citations to the record. Not so. The ALJ provided three pages of discussion of the 12 medical record regarding Plaintiff’s mental impairments. (AR 27-30.) The ALJ reviewed 13 Plaintiff’s mental status reports from October 2020 through January 2023 in detail and concluded 14 that while Plaintiff had instances of increased symptoms, euthymic mood, “variable concentration, 15 memory, speech, or psychomotor retardation,” these were not consistent, and the notations of 16 “impaired functional status” did not correspond to specific limitations or findings. (AR 28-30.) 17 Further, although the record included intermittent findings related to his mood and hallucinations, 18 the ALJ noted that as of January 2023, Plaintiff reported his hallucinations were completely gone 19 with his medication and his mood was “OK.” (AR 29.) 20 The clear and convincing standard requires the “ALJ to show [her] work.” Smartt v. 21 Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (cleaned up) (“In discounting [Plaintiff’s] testimony, 22 the ALJ identified specific, clear, and convincing reasons supporting a finding that [Plaintiff’s] 23 limitations were not as severe as [] claimed. Contradiction with the medical record is a sufficient 24 basis for rejecting the claimant’s subjective testimony.”) “The standard isn’t whether our court is 25 convinced, but instead whether the ALJ’s rationale is clear enough that it has the power to 26 convince.” Id. The ALJ set forth specific reasons supported by clear and convincing evidence for 27 rejecting Plaintiff’s testimony regarding his mental impairments. That the evidence could support 1 rational interpretation, it is the ALJ’s conclusion that must be upheld.” Woods v. Kijakazi, 32 2 F.4th 785, 788 (9th Cir. 2022). 3 B. Subjective Symptom Testimony as to Physical Impairments 4 As to Plaintiff’s physical impairments, the ALJ concluded “the record is consistent with a 5 worsening of his impairments since the prior ALJ decision, but not his alleged level of 6 impairments.” (AR 32.) In so finding, the ALJ relied on the “little evidence he actually was 7 prescribed a cane,” his use of the case was “short-lived,” his gait findings were mostly normal, his 8 other symptoms regarding reduced strength, radiculopathy, and neuropathy improved with 9 physical therapy, and that his recent imaging showed only “mild to moderate degenerative disc 10 disease.” (AR 32.) Plaintiff contends the ALJ erred by ignoring the evidence in the record which 11 supported his need for a cane as well as his many treatment notes describing his abnormal or 12 absent sensation along the lumbar spine and positive straight-leg-raise testing. Plaintiff also 13 argues the ALJ ignored the medical evidence of ongoing physical dysfunction during the period he 14 was receiving physical therapy and the March 2023 imaging evidence which document 15 “abnormal” findings due to “bilateral L5-S1 radiculopathy and bilateral peroneal neuropathy 16 severe on the left side and moderate on the right side.” (AR 2326.) 17 As with the evidence of Plaintiff’s mental impairments, the ALJ summarized the medical 18 evidence as to Plaintiff’s physical impairments in detail. (AR 30-32.) However, the ALJ failed to 19 consider the evidence of a worsening in Plaintiff’s physical condition, and instead focused on the 20 evidence supporting her findings. In particular, the ALJ failed to acknowledge the medical reports 21 from October 2021 through December 2022 which reflect ongoing pain ranging from 6 to 8.5 out 22 of 10. (See, e.g., AR 1755 (10/6/21 visit noting pain at 8.5/10); AR 1754 (11/2/21 visit noting 23 pain at 8/10); AR 1753 (12/20/21 visit noting pain at 8/10); AR 1751 (1/17/22 visit noting pain at 24 7/10); AR 1748 (3/14/22 visit noting pain at 10/10); AR 1744 (4/6/22 visit noting pain at 8/10); 25 AR 1742 (4/26/22 visit noting pain at 8/10); AR 1741 (5/24/22 visit noting pain at 8/10); AR 1738 26 (6/21/22 visit noting pain at 8/10); AR 1736 (7/6/22 visit noting pain at 7/10); AR 1735 (7/13/22 27 visit noting pain at 8/10); AR 1733 (8/5/22 visit noting pain at 6 out of 10); AR 1731 (8/26/22 visit 1 noting pain 6/10).) To the extent the ALJ discusses these records, she ignores Plaintiff’s reports of 2 pain at 8/10 during these visits and instead cites to the portion of the record from these visits 3 noting his gait was “intact.” (AR 31.) But the visits the ALJ relied upon were both telemedicine 4 visits so it is unclear what it means that his gait was reported as “intact.” (AR 1735, 1744.) 5 Likewise, while the ALJ cites Plaintiff’s physical therapy notes from December 20, 2022 6 stating he was still in pain, but he was moving better and was happy with his progress, the ALJ 7 ignores the treatment notes from the very next day reporting cervical, thoracic, lower back, and 8 bilateral leg pain at 8/10. (Compare AR 31 (citing AR 1761) with AR 1719.) Similarly, although 9 the ALJ characterizes the “recent imaging studies as consistent with ‘mild to moderate 10 degenerative disc disease,’” she ignores the “abnormal” finding of severe to moderate 11 radiculopathy from February 2023. 12 The Commissioner insists the ALJ’s findings are also supported by Plaintiff’s activities of 13 daily living which undermine his reports of pain. But the ALJ did not cite to Plaintiff’s activities 14 of daily living as a basis for her findings and the Court cannot consider these post hoc 15 rationalizations not offered by the ALJ. See Bray v. Commissioner of Social Security Admin., 554 16 F.3d 1219, 1225 (9th Cir. 2009) (“[l]ong-standing principles of administrative law require us to 17 review the ALJ's decision based on the reasoning and factual findings offered by the ALJ—not 18 post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”). 19 To be sure, “[c]ontradiction with the medical record is a sufficient basis for rejecting the 20 claimant’s subjective testimony.” Smartt, 53 F.4th at 499. However, the ALJ cannot cherry pick 21 the evidence which supports her finding while ignoring other contradictory evidence. See 22 Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (finding error when the ALJ’s decision did 23 not account for the record “as a whole,” but rather relied on “cherry picked” evidence); Williams v. 24 Colvin, No. 14-cv-2146-PLA, 2015 WL 4507174, at *6 (C.D. Cal. July 23, 2015) (cleaned up) 25 (“An ALJ may not cherry-pick evidence to support the conclusion that a claimant is not disabled, 26 but must consider the evidence as a whole in making a reasoned disability determination.”). 27 Accordingly, the ALJ’s rejection of Plaintiff’s subjective symptom testimony regarding his III. THE ALJ’S STEP FIVE DETERMINATION 1 Plaintiff contends the ALJ erred in failing to resolve inconsistencies between the 2 Vocational Expert’s testimony and the Dictionary of Occupational Titles. The Commissioner 3 concedes there was an error with respect to consideration of the jobs of cashier II and sales 4 attendant, but contends there was no conflict as to the job of marker. (Dkt. No. 13 at 9-10.) The 5 ALJ’s errors with respect to her consideration of Plaintiff’s subjective symptom testimony 6 regarding his physical limitations requires remand. See Stout v. Comm’r, Soc. Sec. Admin., 454 7 F.3d 1050, 1056 (9th Cir. 2006). Because the jobs were based on a RFC that included Plaintiff’s 8 physical and mental limitations, and the RFC may be modified on remand, the Court declines to 9 consider Plaintiff’s step five arguments. 10 IV. REMEDY 11 Plaintiff asks the Court to remand the case for further proceedings. Remand is appropriate 12 here so the ALJ can consider fully consider Plaintiff’s subjective symptom testimony as to his 13 physical limitations. 14 CONCLUSION 15 For the reasons stated above, the Court REVERSES the ALJ’s decision in part and 16 REMANDS for further proceedings consistent with this Order. 17 IT IS SO ORDERED. 18 Dated: October 28, 2024 19

21 JACQUELINE SCOTT CORLEY United States District Judge 22 23 24 25 26 27