3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 CAROLYN G. RYCROFT, Case No. 2:19-cv-00225-BNW 7 Plaintiff 8 ORDER v. 9 ANDREW SAUL, Acting Commissioner of 10 Social Security,
11 Defendant
12 13 This matter was referred to the undersigned magistrate judge on consent under 28 U.S.C. 14 § 636(c). (ECF No. 25.) The case involves review of an administrative action by the 15 Commissioner of Social Security denying Plaintiff Carolyn G. Rycroft’s application for 16 supplemental security income under Title XVI of the Social Security Act. The court reviewed 17 Plaintiff’s motion for summary judgment (ECF No. 18), filed July 2, 2019, and the 18 Commissioner’s response and cross-motion to affirm (ECF No. 21), filed July 25, 2019. Plaintiff 19 did not file a reply. 20 I. BACKGROUND 21 1. Procedural History 22 On November 18, 2014, Plaintiff applied for supplemental security income under Title 23 XVI of the Act, alleging an onset date of January 25, 2011. AR1 210-218. Plaintiff’s claim was 24 denied initially and on reconsideration. AR 129-132, 139-144. A hearing was held before an 25 Administrative Law Judge (“ALJ”) on July 6, 2017. AR 41-75. On January 12, 2018, the ALJ 26 Andrew Saul has been substituted for his predecessor in office, Nancy A. Berryhill, pursuant to 27 Federal Rule of Civil Procedure 25(d). 1 issued a decision finding that Plaintiff was not disabled. AR 10-28. The ALJ’s decision became 2 the Commissioner’s final decision when the Appeals Council denied review. AR 1-6. Plaintiff, 3 on February 6, 2019, commenced this action for judicial review under 42 U.S.C. § 405(g). (See 4 IFP App. (ECF No. 1).) 5 II. DISCUSSION 6 1. Standard of Review 7 Administrative decisions in social security disability benefits cases are reviewed under 42 8 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section 405(g) 9 provides that “[a]ny individual, after any final decision of the Commissioner of Social Security 10 made after a hearing to which [s]he was a party, irrespective of the amount in controversy, may 11 obtain a review of such decision by a civil action . . . brought in the district court of the United 12 States for the judicial district in which the plaintiff resides.” The court may enter “upon the 13 pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the 14 decision of the Commissioner of Social Security, with or without remanding the cause for a 15 rehearing.” Id. 16 The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 17 See 42 U.S.C. § 405(g); Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). However, the 18 Commissioner’s findings may be set aside if they are based on legal error or not supported by 19 substantial evidence. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 20 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines 21 substantial evidence as “more than a mere scintilla but less than a preponderance; it is such 22 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 23 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 24 1211, 1214 n.1 (9th Cir. 2005). In determining whether the Commissioner’s findings are 25 supported by substantial evidence, the court “must review the administrative record as a whole, 26 weighing both the evidence that supports and the evidence that detracts from the Commissioner’s 27 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see also Smolen v. Chater, 80 1 Under the substantial evidence test, findings must be upheld if supported by inferences 2 reasonably drawn from the record. Batson v. Commissioner of Social Security, 359 F.3d 1190, 3 1193 (9th Cir. 2004). When the evidence will support more than one rational interpretation, the 4 court must defer to the Commissioner’s interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 5 (9th Cir. 2005); Flaten v. Sec’y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). 6 Consequently, the issue before the court is not whether the Commissioner could reasonably have 7 reached a different conclusion, but whether the final decision is supported by substantial 8 evidence. It is incumbent on the ALJ to make specific findings so that the court does not 9 speculate as to the basis of the findings when determining if the Commissioner’s decision is 10 supported by substantial evidence. Mere cursory findings of fact without explicit statements as to 11 what portions of the evidence were accepted or rejected are not sufficient. Lewin v. Schweiker, 12 654 F.2d 631, 634 (9th Cir. 1981). The ALJ’s findings “should be as comprehensive and 13 analytical as feasible, and where appropriate, should include a statement of subordinate factual 14 foundations on which the ultimate factual conclusions are based.” Id. 15 2. Disability Evaluation Process 16 The individual seeking disability benefits has the initial burden of proving disability. 17 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir 1995). To meet this burden, the individual must 18 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 19 determinable physical or mental impairment which can be expected . . . to last for a continuous 20 period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The individual must also provide 21 “specific medical evidence” in support of her claim for disability. 20 C.F.R. § 404.1514. If the 22 individual establishes an inability to perform her prior work, then the burden shifts to the 23 Commissioner to show that the individual can perform other substantial gainful work that exists 24 in the national economy. Reddick, 157 F.3d at 721. 25 The ALJ follows a five-step sequential evaluation process in determining whether an 26 individual is disabled. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If 27 at any step the ALJ determines that he can make a finding of disability or non-disability, a 1 § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). 2 Step one requires the ALJ to determine whether the individual is engaged in substantial 3 gainful activity (“SGA”). 20 C.F.R. § 404.1520(b). SGA is defined as work activity that is both 4 substantial and gainful; it involves doing significant physical or mental activities usually for pay 5 or profit. Id. § 404.1572(a)-(b). If the individual is engaged in SGA, then a finding of not 6 disabled is made. If the individual is not engaged in SGA, then the analysis proceeds to step two. 7 Step two addresses whether the individual has a medically determinable impairment that 8 is severe or a combination of impairments that significantly limits her from performing basic 9 work activities. Id. § 404.1520(c). An impairment or combination of impairments is not severe 10 when medical and other evidence establishes only a slight abnormality or a combination of slight 11 abnormalities that would have no more than a minimal effect on the individual’s ability to work. 12 Id. § 404.1521; see also Social Security Rulings (“SSRs”) 85-28, 96-3p, and 96-4p.2 If the 13 individual does not have a severe medically determinable impairment or combination of 14 impairments, then a finding of not disabled is made. If the individual has a severe medically 15 determinable impairment or combination of impairments, then the analysis proceeds to step three. 16 Step three requires that the ALJ determine whether the individual’s impairments or 17 combination of impairments meet or medically equal the criteria of an impairment listed in 20 18 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If 19 the individual’s impairment or combination of impairments meets or equals the criteria of a 20 listing and the duration requirement, 20 C.F.R. § 404.1509, then a finding of disabled is made. 21 Id. § 404.1520(h). If the individual’s impairment or combination of impairments does not meet 22 or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds to 23 step four. 24 The SSA must follow a special technique to evaluate mental impairments at steps two and 25 three. Id. § 404.1520a. The special technique requires that the ALJ substantiate the presence of a 26 2 SSRs constitute the SSA’s official interpretation of the statute and regulations. See Bray v. 27 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009); see also 20 C.F.R. § 402.35(b)(1). They are entitled to some deference as long as they are consistent with the Social Security Act and 1 medically determinable impairment using pertinent symptoms, signs, and laboratory findings, and 2 then to rate the degree of functional limitation that results from the mental impairment in four 3 broad categories: activities of daily living; social functioning; concentration, persistence, or pace; 4 and episodes of decompensation. Id. § 404.1520a(b)-(c). If the degree of limitation in the first 5 three categories is none or mild, and the claimant has no episodes of decompensation of extended 6 duration, then the claimant’s mental impairment is not severe, and the analysis proceeds. Id. § 7 404.1520a(d)(1). 8 But before moving to step four, the ALJ must first determine the individual’s residual 9 functional capacity (“RFC”), which is a function-by-function assessment of the individual’s 10 ability to do physical and mental work-related activities on a sustained basis despite limitations 11 from impairments. See id. § 404.1520(e); see also SSR 96-8p. In making this finding, the ALJ 12 must consider all the relevant evidence, such as all symptoms and the extent to which the 13 symptoms can reasonably be accepted as consistent with the objective medical evidence and other 14 evidence. 20 C.F.R. § 404.1529; see also SSRs 96-4p and 96-7p. To the extent that statements 15 about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not 16 substantiated by objective medical evidence, the ALJ must make a finding on the credibility of 17 the individual’s statements based on a consideration of the entire case record. The ALJ must also 18 consider opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527 and 19 SSRs 96-2p, 96-5p, 96-6p, and 06-3p. 20 Step four requires the ALJ to determine whether the individual has the RFC to perform 21 her past relevant work (“PRW”). 20 C.F.R. § 404.1520(f). PRW means work performed either 22 as the individual actually performed it or as it is generally performed in the national economy 23 within the last 15 years or 15 years before the date that disability must be established. In 24 addition, the work must have lasted long enough for the individual to learn the job and performed 25 a SGA. Id. §§ 404.1560(b) and 404.1565. If the individual has the RFC to perform her past 26 work, then a finding of not disabled is made. If the individual is unable to perform any PRW or 27 does not have any PRW, then the analysis proceeds to step five. 1 The fifth and final step requires the ALJ to determine whether the individual is able to do 2 any other work considering her RFC, age, education, and work experience. Id. § 404.1520(g). If 3 she is able to do other work, then a finding of not disabled is made. Although the individual 4 generally continues to have the burden of proving disability at this step, a limited burden of going 5 forward with the evidence shifts to the Commissioner. The Commissioner is responsible for 6 providing evidence that demonstrates that other work exists in significant numbers in the 7 economy that the individual can do. Yuckert, 482 U.S. at 141-42. 8 Here, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. § 9 416.920. AR 12-28. 10 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 11 from the alleged onset date of November 18, 2014. AR 12. 12 At step two, the ALJ found that Plaintiff had the following medically determinable 13 “severe” impairments: spine disorders, dysfunction of the major joints, and affective disorder. Id. 14 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 15 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, 16 Appendix 1. AR 13. 17 At steps two and three, the ALJ applied the requisite special technique to evaluate 18 Plaintiff’s mental impairments and found that these impairments cause mild limitation in 19 understanding, remembering, or applying information; in concentrating, persisting, or maintaining 20 pace; and in adapting or managing oneself. AR 12. But the ALJ found that Plaintiff has no 21 limitation in interacting with others. Id. 22 At step four, the ALJ found that Plaintiff has the residual functional capacity to perform 23 light work: Plaintiff can sit about 6 hours in an 8-hour workday; she can stand or walk about six 24 hours in an eight-hour workday; she can occasionally climb ladders, ropes, or scaffolds; she can 25 frequently climb ramps and stairs; she can frequently balance, stoop, kneel, crouch, and crawl; 26 she can occasionally lift or carry up to 20 pounds; and she can frequently lift or carry up to 10 27 pounds. AR 17. Plaintiff cannot do sustained overhead reaching. Id. She also must avoid 1 hazards. Id. Plaintiff further is limited to unskilled work with occasional contact with the public. 2 Id. The ALJ also found that Plaintiff was unable to perform any PRW. AR 26. 3 At step five, the ALJ considered Plaintiff’s age, education, work experience, and RFC, 4 and found there are jobs that exist in significant numbers in the national economy that Plaintiff 5 could perform. AR 26-27. Accordingly, the ALJ concluded Plaintiff was not under a disability at 6 any time from November 18, 2014 through January 12, 2018, the date of the ALJ’s decision. AR 7 28. 8 3. Analysis a. Whether the ALJ erred by improperly rejecting the opinion of treating 9 physician Dr. Kimberly Adams, M.D. 10 i. The parties’ arguments 11 Plaintiff moves to remand this matter on grounds that the ALJ did not properly weigh the 12 opinion of treating physician Dr. Kimberly Adams, M.D. She argues that the ALJ relied on the 13 following two reasons for assigning “partial” weight to Dr. Adams’ opinion, and that each reason 14 is flawed because it is not “specific and legitimate”: the doctor’s opinion was (1) internally 15 inconsistent and (2) inconsistent with the record. Accordingly, Plaintiff argues that the court 16 should remand for an award of immediate benefits or, in the alternative, a correction of legal 17 errors. 18 The Commissioner disagrees. He argues that the ALJ did not err in giving Dr. Adams’ 19 opinion only partial weight. This is because Dr. Adams’ opinion was inconsistent with the 20 record.3 He also adds that even if the ALJ could have reached a different decision, it is not for the 21 court to “‘substitute its judgment for that of the [ALJ’s].’” 22 ii. The ALJ’s decision 23 The ALJ gave “partial weight” to Dr. Adams’ opinion. AR 26. The ALJ reasoned that 24 [t]he opinions of Dr. Adams are internally inconsistent and not 25 consistent with the record as a whole, e.g., clinical signs during examinations of the [Plaintiff] indicated normal vibratory sense, 26 normal pinprick on the feet and normal sensation on the thenar 27 3 The Commissioner does not discuss in his motion whether the ALJ erred in giving Dr. Adams’ 1 eminence and forearms. There was normal gait and normal tandem gait. The finger-nose, finger-nose-finger and rapid alternating 2 movements were intact. There were no tremors at rest, on arm extension or abnormal movements. Handgrip was normal. Hip 3 flexors and ankle dorsiflexion were normal (Exhibits 22F and 23F). Thus, the opinions are given partial weight. 4 5 AR 25-26. 6 iii. How an ALJ may weigh opinion evidence 7 The ALJ’s role is to consider the evidence, state an interpretation thereof, and make 8 findings accordingly. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). The ALJ is not 9 required to discuss every piece of evidence in the record. Vincent on Behalf of Vincent v. 10 Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). And an ALJ may choose to give more weight 11 to an opinion that is more consistent with the evidence in the record. 20 C.F.R. § 416.927(c)(4) 12 (“[T]he more consistent an opinion is with the record as a whole, the more weight we will give to 13 that opinion.”); Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). Relevant factors when 14 evaluating a medical opinion include the amount of relevant evidence that supports the opinion, 15 the quality of the explanation provided in the opinion, and the consistency of the medical opinion 16 with the record as a whole. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. 17 Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 18 But when faced with contradictory opinions, the ALJ must give specific and legitimate 19 reasons supported by substantial evidence in the record to reject a treating physician’s opinion. 20 Belanger v. Berryhill, 685 F. App’x 596, 598 (9th Cir. 2017) (citing Reddick, 157 F.3d at 725). 21 Similarly, if an ALJ gives a treating physician’s opinion “little” or “partial” weight, the ALJ also 22 must provide specific and legitimate reasons for doing so. Burns v. Berryhill, 731 F. App’x 609, 23 612 (9th Cir. 2018). The ALJ “can meet this burden by setting out a detailed and thorough 24 summary of the facts and conflicting evidence, stating his interpretation thereof, and making 25 findings.” Magallanes v. Bowen, 881 F.3d 747, 751 (9th Cir. 1989) (quoting Cotton v. Brown, 26 799 F.2d 1403, 1408 (9th Cir. 1986)). Put another way, when discounting Dr. Adams’ opinion, 27 “[t]he ALJ must do more than offer h[er] conclusions. [Sh]e must set forth h[er] own 1 correct.” Reddick, 157 F.3d at 725. This is a necessary step so that the reviewing court does not 2 speculate as to the basis of the findings when determining whether substantial evidence supports 3 the ALJ’s decision. 4 Finally, the court is constrained to affirming the ALJ decision on a ground that the ALJ 5 invoked in making her decision. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Stout, 454 6 F.3d at 1054. The court cannot affirm the ALJ's decision based on evidence that the ALJ did not 7 discuss. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 8 iv. Whether the ALJ erred in weighing Dr. Adams’ opinion evidence 9 10 Dr. Kimberly Adams, M.D. was Plaintiff’s treating physician from about July 2013 11 through, at least, January 2017. See, e.g., AR 715-727, 2086-2100. Dr. Adams treated Plaintiff at 12 two facilities: Neurological Associates of Nevada and Kimberly Adams Practice. See, e.g., AR 13 667, 672, 681-682; 715-727. On November 17, 2015, Dr. Adams completed a Physical Medical 14 Source Statement. AR 1167-1170. The questionnaire provided a series of check boxes and short- 15 answer questions allowing the doctor to indicate the severity of Plaintiff’s conditions. Id. 16 Dr. Adams expressed several opinions that are important for evaluating the ALJ’s 17 decision: (1) Plaintiff takes medication that makes her drowsy and unable to function; (2) Plaintiff 18 suffers from depression and anxiety; (3) Plaintiff is incapable of “low stress” work because of her 19 anxiety and depression; (4) Plaintiff can walk zero city blocks without rest or severe pain; (5) 20 Plaintiff can sit for thirty minutes before needing to get up; (6) Plaintiff can stand for fifteen 21 minutes before needing to sit down or walk around; (7) Plaintiff can sit for about four hours in an 22 eight-hour workday; (8) Plaintiff can stand or walk for about four hours in an eight-hour 23 workday; (9) Plaintiff does not need an assistive device for occasional standing or walking; (10) 24 Plaintiff needs between five and six unscheduled breaks in a workday because of muscle 25 weakness, pain/paresthesias, numbness, chronic fatigue, adverse effects of medication, and 26 abnormal restroom breaks; (11) Plaintiff needs to elevate her legs no higher than her knee during 27 an entire eight-hour workday; (12) Plaintiff can occasionally lift or carry ten pounds or fewer; 1 (13) Plaintiff can rarely lift or carry twenty pounds; (14) Plaintiff can never lift or carry fifty 2 pounds; (15) Plaintiff can rarely twist; (16) Plaintiff can never stoop, crouch, squat, climb stairs, 3 or climb ladders; (17) Plaintiff can use her right hand to grasp, turn, and twist objects fifty percent 4 of an eight-hour workday; (18) Plaintiff can use her right fingers to perform fine manipulations 5 twenty-five percent of an eight-hour workday; (19) Plaintiff can use her right arm to reach 6 overhead eighty percent of an eight-hour workday; (20) Plaintiff can use her left arm to reach in 7 front of her body eighty percent of an eight-hour workday; (21) Plaintiff can use her left arm to 8 reach overhead eighty percent of an eight-hour workday; (22) Plaintiff will be off task at least 9 twenty-five percent or more of a workday; and (23) Plaintiff will miss more than four days per 10 month from work. AR 1167-1170. 11 The ALJ offered two reasons for discounting Dr. Adams’ opinions regarding Plaintiff’s 12 limitations: (1) they were internally inconsistent, and (2) they were inconsistent with the record as 13 a whole. AR 25-26. 14 To support her conclusion, the ALJ listed the findings of several objective medical 15 examinations (e.g., sensory, gait, and cerebellar exams) that Plaintiff completed. AR 26. But it is 16 unclear to the court whether the medical examination findings are supposed to support the ALJ’s 17 conclusion that Dr. Adams’ opinion was internally inconsistent, that Dr. Adams’ opinion was 18 inconsistent with the record as a whole, or both. This is so for two reasons. 19 First, the ALJ cited the results of the medical examinations in the same sentence that she 20 concluded that Dr. Adams’ opinions were both internally inconsistent and not consistent with the 21 record as a whole.4 AR 25-26. But the ALJ listed the examination results only after the second 22 reason (i.e., Dr. Adams’ opinion is not consistent with the record as a whole). AR 26. After 23 24
25 4 The ALJ wrote, “The opinions of Dr. Adams are internally inconsistent and not consistent with the record as a whole, e.g., clinical signs during examinations of the [Plaintiff] indicated normal vibratory 26 sense, normal pinprick on the feet and normal sensation on the thenar eminence and forearms. There was normal gait and normal tandem gait. The finger-nose, finger-nose-finger and rapid alternating movements 27 were intact. There were no tremors at rest, on arm extension or abnormal movements. Handgrip was normal. Hip flexors and ankle dorsiflexion were normal (Exhibits 22F and 23F). Thus, the opinions are 1 listing these findings, the ALJ ended her discussion on Dr. Adams and moved to discussing the 2 opinions of four other medical providers. AR 26. 3 Second, the exhibits the ALJ cited to—22F and 23F—include the records of multiple 4 medical providers, not just those of Dr. Adams. For example, Exhibit 22F includes the 5 impressions for a lumbar spine MRI Plaintiff underwent on January 20, 2015. Id. Radiology 6 Associates of Nevada interpreted the MRI, and Dr. Nader Beheshti, M.D. dictated the 7 impressions. AR 668. Dr. Michael Horan, M.D.—not Dr. Adams—is listed as the referring 8 doctor for the MRI. Id. Exhibit 23F, on the other hand, includes treatment notes by three 9 providers—Dr. Adams, Dr. Horan, and Mr. Isaac Tunnel, PA-C—for Plaintiff’s six visits to the 10 Neurological Associates of Nevada between September 5, 2014 and February 16, 2015. AR 672- 11 685. Notably, Dr. Horan signed the notes for each of these six visits. Id. 12 For the purpose of the analysis, the court will accept that the ALJ intended the listed 13 medical examination findings to support both of her reasons for discounting Dr. Adams’ opinion. 14 (a) Whether Dr. Adams’ opinion is internally inconsistent 15 First, the ALJ determined that Dr. Adams’ opinion was internally inconsistent. AR 25. 16 Having reviewed the record, it is unclear to the court how the ALJ’s cited examples (noted above) 17 support the ALJ’s conclusion that Dr. Adams’ opinion was internally inconsistent. For example, 18 the ALJ cited to Plaintiff’s cerebellar exams that indicated Plaintiff’s finger-nose, finger-nose- 19 finger and rapid alternating movements were intact. See, e.g., AR 672, 676. Dr. Adams noted 20 that Plaintiff had at least 23 different work limitations (AR 1167-1170), and the cerebellar exam 21 findings could be relevant (or not) to more than one of these limitations. Without a detailed 22 explanation regarding how the objective examinations conflict with Dr. Adams’ opinion, the 23 court cannot determine (without guessing) whether ALJ’s reasons for determining that Dr. 24 Adams’ opinion was internally inconsistent are legitimate. 25 The Commissioner is correct to argue that the ALJ is not required to use “‘magic words’ 26 when evaluating medical opinion evidence, and [c]ourts can draw ‘specific and legitimate 27 inferences’ from the ALJ’s discussion.” But such an inference is difficult to make in this case. 1 did not cite which of these limitations were contradicted by Dr. Adams’ notes; (2) Dr. Adams did 2 not complete the listed exams at each visit; and (3) Dr. Horan signed Dr. Adams’ treatment notes 3 that are found in Exhibit 23F. AR 26. 4 In short, an ALJ may discount a treating physician’s opinion if it is contradicted by the 5 physician’s own notes. See Morgan, 169 F.3d at 603; see also Connett, 340 F.3d at 875 (a 6 physician’s opinion may be rejected if it is unsupported by the physician’s treatment notes). But 7 the ALJ must explain what the conflicting evidence was and her interpretation of this conflicting 8 evidence. Thomas, 278 F.3d at 957 (citing Magallanes, 881 F.3d at 751). Here, the ALJ failed to 9 meet this burden. As a result, the court cannot properly evaluate whether Dr. Adams’ opinion 10 was internally inconsistent. 11 (b) Whether Dr. Adams’ opinion is inconsistent with the record 12 Second, the ALJ found that Dr. Adams’ opinion was contradicted by the record. The ALJ 13 found that the medical examination findings located in Exhibits 22F and 23F established that Dr. 14 Adams’ opinion was inconsistent with the record as a whole. AR 26. As discussed in the 15 previous section, although the ALJ included a list of “normal” medical examination findings, she 16 failed to explain in detail what the conflicting evidence was and her interpretation of this 17 conflicting evidence. Thomas, 278 F.3d at 957 (citing Magallanes, 881 F.3d at 751). For 18 example, Exhibit 23F, to which the ALJ cited, has multiple medical records from different 19 providers at the Neurological Associates of Nevada, including a November 7, 2014, re-evaluation 20 that Mr. Tunell conducted. AR 678-679. Mr. Tunell found that Plaintiff had no abnormal 21 involuntary movements and a normal cerebellar exam (i.e., finger-nose, finger-nose-finger and 22 rapid alternating movements were intact)—the same findings as Dr. Adams. AR 678. He opined 23 that Plaintiff had restless leg syndrome and chronic pain syndrome. AR 679. Additionally, Dr. 24 Horan’s notes, like those of Dr. Adams’ and Mr. Tunell, also indicated that Plaintiff’s finger- 25 nose, finger-nose-finger and rapid alternating movements were intact. See, e.g., AR 919. And 26 Dr. Horan electronically signed Dr. Adams’ treatment notes that are found in Exhibit 23F. But, 27 whereas the ALJ assigned “partial” weight to Dr. Adams’ opinion, the ALJ gave Dr. Horan’s 1 opinion “substantial” weight because it was “based on knowledge of the [Plaintiff’s] condition in 2 providing her with treatment . . . .” AR 26. 3 Further, some of the evidence that the ALJ cited appears to actually support Dr. Adams’ 4 findings. For instance, Exhibit 22F includes the impressions for a lumbar spine MRI that Plaintiff 5 completed in early 2015. AR 668-669. The reviewing doctor, Dr. Beheshti, opined that Plaintiff 6 had mild central canal stenosis with bilateral minimal neural foraminal narrowing at L4-L5 7 caused by a minimal disc bulge and moderate ligamentum flavum and facet hypertrophy. AR 8 668. These impressions could be consistent with Dr. Adams’ opinion that Plaintiff would require 9 between five and six breaks during a workday or that she could only stand or walk for about four 10 hours in an eight-hour workday. AR 1168. In all events, the ALJ’s citations to the record do not 11 allow the court to determine (without guessing) whether the ALJ’s reasons for rejecting Dr. 12 Adams’ opinion were legitimate. 13 Accordingly, because the ALJ did not provide specific and legitimate reasons for 14 discounting Dr. Adams’ opinion, the court holds that the ALJ erred. Nguyen, 100 F.3d at 1464 15 (“Where an ALJ does not explicitly reject a medical opinion or set forth specific, legitimate 16 reasons for crediting one medical opinion over another, he errs.”); see also Lewin, 654 F.2d at 17 634 (The ALJ’s findings “should be as comprehensive and analytical as feasible, and where 18 appropriate, should include a statement of subordinate factual foundations on which the ultimate 19 factual conclusions are based.”). 20 The next step is to determine whether the ALJ’s error is harmless. An ALJ’s error is 21 harmless only if it is found to be “inconsequential to the ultimate nondisability determination” 22 and if the court “can confidently conclude that no reasonable ALJ, when [not making the same 23 error] could have reached a different disability determination.” Stout, 454 F.3d at 1055-1056; see 24 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). This court cannot say with certainty that 25 another ALJ, upon crediting Dr. Adams’ opinion, would not have reached a different disability 26 determination. Accordingly, the ALJ’s error was not harmless. 27 1 || If. CONCLUSION AND ORDER 2 Accordingly, IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary 3 || Judgment (ECF No. 18) is GRANTED. 4 IT IS FURTHER ORDERED that this case is remanded for further proceedings regarding 5 || the weighing of Dr. Adams’ opinion and, in turn, any effect this may have on Plaintiff’s residual 6 || functional capacity and what jobs, if any, Plaintiff can perform. 7 IT IS FURTHER ORDERED that the Commissioner’s Response and Cross Motion to 8 || Affirm (ECF No. 21) is DENIED. 9 IT IS FURTHER ORDERED that the Clerk of Court must enter judgment in favor of 10 || Plaintiff and against the Commissioner. 11 12 DATED: March 17, 2020 13 4 Kx pr La BRENDA WEKSLER 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28