(SS) Beverly v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: March 21, 2025
• Docket: 2:24-cv-00914
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KIMBER BEVERLY, No. 2:24-CV-0914-DAD-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pending before the Court are the parties’ briefs on the merits, ECF Nos. 11 and 13. 21 The Court reviews the Commissioner’s final decision to determine whether it is: 22 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 23 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 24 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 25 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 26 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 27 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 28 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 1 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 2 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 3 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 4 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 5 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 6 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 7 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 8 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 9 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 10 Cir. 1988). 11 For the reasons discussed below, the Court recommends that the Commissioner’s 12 final decision be affirmed. 13 14 I. THE DISABILITY EVALUATION PROCESS 15 To achieve uniformity of decisions, the Commissioner employs a five-step 16 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. 17 §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

18 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 19 not disabled and the claim is denied;

20 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 21 impairment; if not, the claimant is presumed not disabled and the claim is denied; 22 Step 3 If the claimant has one or more severe impairments, 23 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 24 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 25 Step 4 If the claimant’s impairment is not listed in the regulations, 26 determination whether the impairment prevents the claimant from performing past work in light of the 27 claimant’s residual functional capacity; if not, the claimant is presumed not disabled and the claim is denied; 28 1 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 2 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 3 national economy; if so, the claimant is not disabled and the claim is denied. 4 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 5 6 To qualify for benefits, the claimant must establish the inability to engage in 7 substantial gainful activity due to a medically determinable physical or mental impairment which 8 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 9 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 10 impairment of such severity the claimant is unable to engage in previous work and cannot, 11 considering the claimant’s age, education, and work experience, engage in any other kind of 12 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 13 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 14 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 15 The claimant establishes a prima facie case by showing that a physical or mental 16 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 17 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 18 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 19 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 20 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 21 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on October 8, 2021. See CAR 20.1 In 3 the application, Plaintiff claims disability began on August 1, 2020. See id. Plaintiff’s claim was 4 initially denied. Following denial of reconsideration, Plaintiff requested an administrative 5 hearing, which was held on March 2, 2023, before Administrative Law Judge (ALJ) John M. 6 Dowling. In an April 28, 2023, decision, the ALJ concluded Plaintiff is not disabled based on the 7 following relevant findings:

8 1. The claimant has the following severe impairment(s): coronary artery disease and asthma. 9 2. The claimant does not have an impairment or combination of 10 impairments that meets or medically equals an impairment listed in the regulations. 11 3. The claimant has the following residual functional capacity: the 12 claimant can perform medium work; she can never climb ladders, ropes, or scaffolds; she must avoid all exposure to unprotected 13 heights; and she must avoid frequent exposure to non-weather related hot and cold temperatures. 14 4. Considering the claimant’s age, education, work experience, 15 residual functional capacity, and vocational expert testimony, the claimant can perform her past relevant work as a warehouse 16 worker.

17 See id. at 22-31. 18 After the Appeals Council declined review on January 22, 2024, this appeal followed. 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 1 Citations are the to the Certified Administrative Record (CAR) lodged on May 22, 28 2024, ECF No. 10. 1 III. DISCUSSION 2 In her opening brief, Plaintiff argues the ALJ applied an incorrect legal standard to 3 evaluate the medical opinion evidence and, in so doing, substituted his own lay opinion for 4 medical opinions. See ECF No. 11, pgs. 3-12. 5 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 6 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not 7 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 8 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical 9 opinion over another. See id. 10 Under the regulations, only “licensed physicians and certain qualified specialists” 11 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 12 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on 13 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it 14 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 15 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute 16 substantial evidence when the opinions are consistent with independent clinical findings or other 17 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social 18 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. 19 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants 20 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). 21 Opinions from “other sources” such as nurse practitioners, physician assistants, and social 22 workers may be discounted provided the ALJ provides reasons germane to each source for doing 23 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 24 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance 25 when opinions from “other sources” may be considered acceptable medical opinions). 26 / / / 27 / / / 28 / / / 1 The Commissioner has promulgated revised regulations concerning how ALJs 2 must evaluate medical opinions for claims filed, as here, on or after March 27, 2017. See 20 3 C.F.R. §§ 404.1520c, 416.920c. These regulations supersede prior caselaw establishing the 4 treating physician rule which established a hierarchy of weight to be given medical opinions 5 depending on their source. See id.; see also Jones v. Saul, 2021 WL 620475, at *9 (E.D. Cal. 6 Feb. 17, 2021) (“In sum, because (1) the 2017 regulations are not arbitrary and capricious or 7 manifestly contrary to statute, (2) the prior judicial construction was not mandated by the 8 governing statutory language to the exclusion of a differing agency interpretation, and (3) the 9 [treating-physician rule] is inconsistent with the new regulation, the court concludes that the 2017 10 regulations effectively displace or override [prior caselaw.]”). Thus, ALJs are no longer required 11 to “defer to or give any specific evidentiary weight to” treating physicians over medical opinions 12 from other sources. See Carr v. Comm’r of Soc. Sec., 2021 WL 1721692, at *7 (E.D. Cal. Apr. 13 30, 2021). 14 Under the revised regulations, the ALJ must evaluate opinions and prior 15 administrative medical findings by considering their “persuasiveness.” See Buethe v. Comm’r of 16 Soc. Sec., 2021 WL 1966202, at *3 (E.D. Cal, May 17, 2021) (citing 20 C.F.R. § 404.1520c(a)). 17 In determining how persuasive the opinion of a medical source is, an ALJ must consider the 18 following factors: supportability, consistency, treatment relationship, specialization, and “other 19 factors.” See Buethe, 2021 WL 1966202, at *3 (citing § 404.1520c(b), (c)(1)-(5)). Despite a 20 requirement to consider all factors, the ALJ’s duty to articulate a rationale for each factor varies. 21 See Buethe, 2021 WL 1966202, at *3 (citing § 404.1520c(a)-(b)). 22 Specifically, in all cases the ALJ must at least “explain how [she] considered the 23 supportability and consistency factors,” as they are “the most important factors.” See Buethe, 24 2021 WL 1966202, at *4 (citing § 404.1520c(b)(2)). For supportability, the regulations state: 25 “[t]he more relevant the objective medical evidence and supporting explanations presented by a 26 medical source are to support his or her medical opinion(s) or prior administrative medical 27 finding(s), the more persuasive [the opinion] will be.” See Buethe, 2021 WL 1966202, at *4 28 (quoting § 404.1520c(c)(1)). “For consistency, the regulations state: ‘[t]he more consistent a 1 medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 2 medical sources and nonmedical sources in the claim, the more persuasive [the opinion] will be.’” 3 Buethe, 2021 WL 1966202, at *4 (quoting § 404.1520c(c)(2)). “The ALJ is required to articulate 4 findings on the remaining factors (relationship with claimant, specialization, and ‘other’) only 5 when ‘two or more medical opinions or prior administrative medical findings about the same 6 issue’ are ‘not exactly the same,’ and both are ‘equally well-supported [and] consistent with the 7 record.’” Buethe, 2021 WL 1966202, at *4 (quoting § 404.1520c(b)(2) & (3)). 8 At Step 4, the ALJ evaluated medical opinions offered by the following sources: 9 (1) Satish Sharma, M.D., an agency consultative examining doctor; (2) A. Wong, M.D., an 10 agency non-examining consultative doctor; and (3) T. Bawa, M.D., an agency non-examining 11 consultative doctor. See CAR 28-30. The ALJ found all of the opinion evidence to be "partially 12 persuasive." See id. 13 As to Dr. Sharma, the ALJ stated:

14 In December 2021, Satish K. Sharma, M.D., the consultative examiner, opined, in part, that the claimant was restricted to pushing, pulling, lifting 15 and carrying 20 pounds occasionally and 10 pounds frequently; walking, standing, and sitting for six hours in a workday; and occasionally bending 16 and stooping (Ex. 5F). This opinion is partially persuasive. First, the opinion is based on Dr. Sharma’s expertise, review of the evidence, and 17 examination of the claimant. Second, the opinion does not include a rationale or explanation for the opined-to limitations, which limits its 18 persuasiveness. For example, it does not explain why the claimant would be limited to lifting only 20 pounds or can only occasionally bend and 19 stoop. Third, these opined-to restrictions overstate the claimant’s exertional and postural limitations and are not consistent with the 20 longitudinal evidence of record. The consultative examination showed complaints of back pain and painful range of motion of the lumbar spine, 21 but it is but a single examination during the relevant time period. The longitudinal evidence of record does not document other complaints of 22 or treatment for back pain and the physical examinations have consistently documented normal musculoskeletal examinations with normal range of 23 motion (see Ex. 1F, pp. 17, 20; Ex. 4F, p. 11; Ex. 5F, p. 4; Ex. 7F, pp. 12- 13; Ex. 8F, p. 1). The opinion the claimant is limited to 20 pounds 24 occasionally and has limitations bending and stooping is not consistent with the longitudinal record. Further, it is notable that the opinion does not 25 include respiratory or environmental restrictions despite the claimant’s reports of asthma and the examination showing scattered rhonchi. The 26 longitudinal record supports a finding the claimant has environmental limitations due to asthma. For these reasons, this opinion is only partially 27 persuasive.

28 CAR 28-29. 1 As to Drs. Wong and Bawa, the ALJ stated:

2 In January 2022, A. Wong, M.D., a state agency medical consultant, found the claimant was capable of performing work at the light range of work 3 with various postural limitations (Ex. 1A). In March 2022, T. Bawa, M.D., a state agency medical consultant at the reconsideration level, affirmed the 4 prior assessment with the addition of environmental limitations (Ex. 3A). These assessments are partially persuasive. First, they are based on the 5 consultants’ expertise and review of the evidence of record. Second, they are supported by a summary and discussion of the evidence of record. 6 Third, the assessments are heavily based on the consultative examination opinion, but that opinion is only partially persuasive as discussed above. 7 Fourth, the assessments are only partially consistent with the longitudinal evidence of record. The longitudinal evidence of record does not demand a 8 finding the claimant has the exertional limitations as provided in the assessments. Nor does the longitudinal evidence demand that the claimant 9 has the respiratory restrictions provided in the assessments. As summarized above, the longitudinal record shows the claimant’s asthma is 10 generally stable and he has reported he does not use albuterol often (see Ex. 1F, p. 6; Ex. 7F, p. 11). The record shows an asthma exacerbation in 11 the context of hot weather and attempts to cool down, which supports the environmental limitations herein (see Ex. 9F, p. 28). For these reasons, 12 these assessments are only partially persuasive.

13 CAR 29. 14 Plaintiff argues that the ALJ erred by applying his own lay medical opinion in the 15 absence of supporting medical opinions from an appropriate source and thereby applied an 16 incorrect legal standard at Step 4 in determining Plaintiff's residual functional capacity. See ECF 17 No. 11, pgs. 3-12. According to Plaintiff:

18 The ALJ erroneously relied on his own lay judgment to make the RFC determination in that, although he facially accepted the opinions of 19 the consultative examiner and state agency medical consultants as “partially persuasive” (Tr. 28-29), in fact, in substance he rejected every 20 single medical opinion of record as to Mr. Beverly’s physical limitations arising from his complicated impairments (Tr. 28-29). The ALJ 21 determined that Mr. Beverly had the RFC to perform a “medium work. . . except the claimant (1) can never climb ladders, ropes, or scaffolds; (2) 22 must avoid all exposure to unprotected heights; and (3) must avoid frequent exposure to non-weather related hot and cold temperatures” (Tr. 23 24). In fact, the ALJ rejected three medical opinions of record despite the consistency of each limiting Mr. Beverly to no more than light work when 24 making the RFC determination. Therefore, because the ALJ substituted his own lay judgement for that of every medical opinion of record, remand for 25 further consideration of Mr. Beverly’s physical impairments and their impact on the exertional level of work he could perform is required. 26 No medical source of record found that Mr. Beverly had the RFC for more than light work. The ALJ purportedly found the opinion of the 27 consultative examining board certified internist1 Satish K. Sharma, M.D., to be “partially persuasive” (Tr. 28); however, the ALJ rejected critical 28 limitations from Dr. Sharma’s assessment. That is, Dr. Sharma found that 1 Mr. Beverly was limited to light work with occasional bending and stooping (Tr. 472). The ALJ rejected these limitations and found that Mr. 2 Beverly could perform medium work and had no bending or stooping limitations. 3 The ALJ also purportedly found that the two state agency reviewing medical consultants’ opinions were “partially persuasive,” but 4 once again rejected critical limitations they had assessed (Tr. 29). A. Wong, M.D., the initial state agency medical consultant, found that Mr. 5 Beverly was limited to light work with the ability to occasionally climb ramps/stairs, climb ladders/ropes/scaffolds, balance, stoop, kneel, crouch, 6 and crawl (Tr. 72). On reconsideration, T. Bawa, M.D., affirmed these findings but added that Mr. Beverly would be further limited to never 7 climbing ladders/ropes/scaffolds and that he must avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, etc. (Tr. 88-90). 8 By contrast, the ALJ’s RFC allows medium work and includes no postural limitations except a prohibition against climbing ladders, ropes, or 9 scaffolds and none of the aforementioned environmental exposure restrictions (Tr. 24). 10 * * * 11 The ALJ asserted that the limitations given by Dr. Sharma and the 12 state agency medical consultants were not consistent with “the longitudinal evidence of record” (Tr. 28-29). However, the ALJ did not 13 provide any analysis in support of this naked lay conclusion, except with limited references to back pain, as previously discussed. 14 In discussing the state agency medical consultants’ opinions, the ALJ stated that “The longitudinal evidence of record does not demand a 15 finding the claimant has the exertional limitations as provided in the assessments. Nor does the longitudinal evidence demand that the 16 claimant has the respiratory restrictions provided in the assessments” (Tr. 29). This presents numerous critical issues. 17 First, the ALJ’s own finding that Mr. Beverly had a severe impairment of asthma would support a restriction with respect to 18 concentrated exposure to environmental irritants. Under the Commissioner’s own regulations, a severe impairment is one that 19 significantly limits a claimant's physical or mental abilities to do the basic work activities required for unskilled work. 20 C.F.R. § 404.1522(a); see 20 also SSR 85-28, 1985 WL 56856, *3. Basic work activities include “Physical functions such as walking, standing, sitting, lifting, pushing, 21 pulling, reaching, carrying, or handling”; “Capacities for seeing, hearing, and speaking”; “Understanding, carrying out, and remembering simple 22 instructions”, etc. 20 C.F.R. § 404.1522(b)(1-3); Program Operations Manual System (POMS) DI 25020.010(A)(3)(a).2 The ALJ’s finding that 23 Mr. Beverly’s asthma was itself, severe, supports the inclusion of the restrictions included in the state agency medical consultants’ findings. 24 Moreover, the standard for whether exertional or other limitations are supported is not whether they are “demanded” as the ALJ has put forth 25 (Tr. 29). Such as assertion artificially sets the bar much higher than the reasoned medical opinion standard used by Agency adjudicators. 26 Ultimately, the ALJ ignored the medical expertise of these three Agency experts, who in consideration of Mr. Beverly’s cardiac and 27 respiratory history all independently arrived at the unanimous consensus that this claimant was limited to a reduced range of light work with 28 additional limitations. Yet the ALJ determined that Mr. Beverly could 1 perform work at the medium exertional level. This RFC determination was based on nothing more than his lay judgment after rejecting the consistent 2 medical source opinions of record who opined that Mr. Beverly would be limited to light work. The ALJ erred by substituting his lay judgment for 3 the consistent medical source opinions of record and remand for further consideration is required. 4 ECF No. 11, pgs. 4-9. 5 6 Plaintiff’s argument is not persuasive. In essence, Plaintiff contends that the ALJ 7 must take medical opinions which are consistent with each other at face value even if they are 8 inconsistent with the objective evidence of record. According to Plaintiff, assessing consistency 9 with the objective evidence amounts to substitution of a lay opinion for a medical opinion. The 10 Court does not agree. As the parties both acknowledge, this case is governed by revised 11 regulations applicable to cases filed after March 27, 2017. The revised regulations require the 12 ALJ to evaluate opinion evidence by considering their persuasiveness in the context of 13 supportability, consistency, treatment relationship, and specialization. See Buethe, 2021 WL 14 1966202, at *3 (citing § 404.1520c(b), (c)(1)-(5)). “For consistency, the regulations state: ‘[t]he 15 more consistent a medical opinion(s) or prior administrative medical finding(s) is with the 16 evidence from other medical sources and nonmedical sources in the claim, the more persuasive 17 [the opinion] will be.’” Id. at *4 (quoting § 404.1520c(c)(2)); see also Woods v. Kijakazi, 32 18 F.4th 785, 792 (9th Cir. 2022). By the plain language of the revised regulations, the ALJ must 19 consider opinion evidence in the context of all of the medical evidence of record, including the 20 objective findings. Doing so does not amount to substitution of lay opinions for medical opinions 21 but complies with the regulations. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 Based on the foregoing, the undersigned recommends that: 3 1. Plaintiff's motion for summary judgment, ECF No. 11, be denied; 4 2. Defendant’s cross-motion for summary judgment, ECF No. 12, be granted; 5 || and 6 3. The Commissioner’s final decision be affirmed. 7 These findings and recommendations are submitted to the United States District 8 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within 14 days 9 || after being served with these findings and recommendations, any party may file written 10 | objections with the court. Responses to objections shall be filed within 14 days after service of 11 | objections. Failure to file objections within the specified time may waive the right to appeal. See 12 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 13 14 | Dated: March 21, 2025 Ss.cqao_ 1S DENNIS M. COTA 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 1]