1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CAROLYN PARAGAS CORPUZ, No. 2:19-cv-02401 AC 12 Plaintiff, 13 v. ORDER 14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16
17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying her application for disability insurance benefits (“DIB”) under 20 Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-34.1 For the reasons that follow, 21 plaintiff’s motion for summary judgment will be GRANTED, and defendant’s cross-motion for 22 summary judgment will be DENIED. The matter will be reversed and remanded to the 23 Commissioner for further proceedings. 24 //// 25 //// 26 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and 27 who suffer from a mental or physical disability. 42 U.S.C. § 423(a)(1); Bowen v. City of New York, 476 U.S. 467, 470 (1986). 28 1 I. PROCEDURAL BACKGROUND 2 Plaintiff applied for DIB on September 12, 2017. Administrative Record (“AR”) 165-71.2 3 The disability onset date was alleged to be November 4, 2014. AR 165. The application was 4 disapproved initially and on reconsideration. AR 94-98, 100-05. On October 9, 2019, ALJ 5 Daniel G. Heely presided over the hearing on plaintiff’s challenge to the disapprovals. AR 39-65 6 (transcript). Plaintiff, who appeared represented by Luann Wood, was present at the hearing. AR 7 39. Kathleen Spencer, a Vocational Expert (“VE”), also testified. Id. 8 On December 18, 2018, the ALJ found plaintiff “not disabled” under Sections 216(i) and 9 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d). AR 18-31 (decision), 32-36 (exhibit 10 list). On September 21, 2019, the Appeals Council denied plaintiff’s request for review, leaving 11 the ALJ’s decision as the final decision of the Commissioner of Social Security. AR 7-12 12 (decision and additional exhibit list). 13 After receiving an extension of time to file a civil action, plaintiff filed this action on 14 November 27, 2019. ECF No. 1; see 42 U.S.C. § 405(g). The parties consented to the 15 jurisdiction of the magistrate judge. ECF No. 19. The parties’ cross-motions for summary 16 judgment, based upon the Administrative Record filed by the Commissioner, have been fully 17 briefed. ECF Nos. 15 (plaintiff’s summary judgment motion), 18 (Commissioner’s summary 18 judgment motion), 21 (plaintiff’s reply). The Commissioner also filed a motion to file a sur- 19 reply, which will be denied because it is unnecessary. ECF No. 22. 20 II. FACTUAL BACKGROUND 21 Plaintiff was born in 1972, and accordingly was, at age 42, a younger person under the 22 regulations, on the alleged disability onset date.3 AR 66. Plaintiff has a limited education and 23 can communicate in English. AR 183, 198. Plaintiff last worked as a medical assistant from 24 April 2000 through November 2014. 25 //// 26 //// 27 2 The AR is electronically filed at ECF Nos. 11-3 to 11-11 (AR 1 to AR 487). 28 3 See 20 C.F.R. § 404.1563(c) (“younger person”). 1 III. LEGAL STANDARDS 2 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 3 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 4 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 5 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 6 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 7 Substantial evidence is “more than a mere scintilla,” but “may be less than a 8 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such 9 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 10 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 11 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 12 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 13 Although this court cannot substitute its discretion for that of the Commissioner, the court 14 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 15 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 16 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 17 court must consider both evidence that supports and evidence that detracts from the ALJ’s 18 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 19 “The ALJ is responsible for determining credibility, resolving conflicts in medical 20 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 21 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 22 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 23 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 24 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 25 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 26 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 27 evidence that the ALJ did not discuss”). 28 //// 1 The court will not reverse the Commissioner’s decision if it is based on harmless error, 2 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 3 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 4 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 5 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 6 IV. RELEVANT LAW 7 Disability Insurance Benefits and Supplemental Security Income are available for every 8 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) (DIB), 1381a (SSI). Plaintiff 9 is “disabled” if she is “‘unable to engage in substantial gainful activity due to a medically 10 determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 11 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). 12 The Commissioner uses a five-step sequential evaluation process to determine whether an 13 applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 14 Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation 15 process to determine disability” under Title II and Title XVI). The following summarizes the 16 sequential evaluation: 17 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 18 20 C.F.R. § 404.1520(a)(4)(i), (b). 19 Step two: Does the claimant have a “severe” impairment? If so, 20 proceed to step three. If not, the claimant is not disabled. 21 Id. §§ 404.1520(a)(4)(ii), (c). 22 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 23 Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. 24 Id. §§ 404.1520(a)(4)(iii), (d). 25 Step four: Does the claimant’s residual functional capacity make him 26 capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 27 Id. §§ 404.1520(a)(4)(iv), (e), (f). 28 1 Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. If not, 2 the claimant is disabled. 3 Id. §§ 404.1520(a)(4)(v), (g). 4 The claimant bears the burden of proof in the first four steps of the sequential evaluation 5 process. 20 C.F.R. §§ 404.1512(a) (“In general, you have to prove to us that you are blind or 6 disabled”), 416.912(a) (same); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the 7 sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not 8 disabled and can engage in work that exists in significant numbers in the national economy.” Hill 9 v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 10 V. THE ALJ’s DECISION 11 The ALJ made the following findings: 12 1. The claimant last met the insured status requirements of the Social Security Act through December 31, 2019. 13 2. [Step 1] The claimant has not engaged in substantial gainful 14 activity since November 4, 2014, the alleged onset date (20 CFR 404.1571 et seq.). 15 3. [Step 2] The claimant has the following severe impairments: 16 degenerative disc disease – lumbar spine, unspecified depressive disorder, and generalized anxiety disorder (20 CFR 404.1520(c)). 17 4. [Step 3] The claimant does not have an impairment or combination 18 of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 19 (20 CFR 404.1520(d), 404.1525 and 404.1526). 20 5. [Residual Functional Capacity (“RFC”)] After careful consideration of the entire record, the undersigned finds that the 21 claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she is limited to 22 understanding, remembering and carrying out simple instructions and making simple work-related decisions; able to tolerate a low 23 level of work pressure, defined as work with no multitasking or detailed job tasks; able to work at a consistent pace throughout the 24 workday, but not at a production-rate pace where each task must be performed within a strict time deadline such as meeting a quick 25 turnaround with no tolerance for discrepancies; occasional contact with coworkers and can respond appropriately to criticism from 26 supervisors; occasional interaction with the public; never climb ladders, ropes or scaffolds; occasionally climb ramps or stairs; 27 occasionally balance, stoop, kneel, crouch or crawl; never work around hazards (such as moving, dangerous machinery or 28 unprotected heights; and no operation of motor vehicle. 1 6. [Step 4] The claimant is unable to perform any past relevant work (20 CFR 404.1565). 2 7. [Step 5] The claimant was born [in 1972] and was 42 years old, 3 which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563). 4 8. [Step 5, continued] The claimant has a limited education and is 5 able to communicate in English (20 CFR 404.1564). 6 9. [Step 5, continued] Transferability of job skills is not material to the determination of disability because using the Medical-Vocational 7 Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See 8 SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). 9 10. [Step 5, continued] Considering the claimant’s age, education, work experience, and residual functional capacity, there are job that 10 exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569a). 11 11. The claimant has not been under a disability, as defined in the 12 Social Security Act, from November 4, 2014, through the date of this decision (20 CFR 404.1520(g)). 13 14 AR 23-31. As noted, the ALJ concluded that plaintiff was “not disabled” under Title II of the 15 Act. AR 31. 16 VI. ANALYSIS 17 Plaintiff alleges that the ALJ erred in three ways: (1) by failing to find plaintiff’s 18 fibromyalgia a “medically determinable” and “severe” impairment at step two; (2) by assessing 19 an RFC that is not supported by the substantial evidence of record, by failing to properly credit an 20 examining physician opinion and failing to credit plaintiff’s subjective testimony; and (3) by 21 failing to evaluate whether plaintiff’s degenerative disease equaled Listing 1.04A at step three. 22 ECF No. 15 at 17-32. 23 A. The ALJ Did Not Err at Step Two 24 Plaintiff argues that the ALJ erred at step two of the sequential evaluation process by 25 failing to find that plaintiff’s fibromyalgia constitutes a medically determinable and severe 26 impairment. ECF No. 15 at 17. The undersigned disagrees. The step-two inquiry is a de 27 minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 28 1290 (9th Cir. 1996). The purpose is to identify claimants whose medical impairment is so slight 1 that it is unlikely they would be disabled even if age, education, and experience were taken into 2 account. Bowen, 482 U.S. at 153. 3 At step two of the sequential evaluation, the ALJ determines which of claimant’s alleged 4 impairments are “severe” within the meaning of 20 C.F.R. § 404.1520(c). “An impairment is not 5 severe if it is merely ‘a slight abnormality (or combination of slight abnormalities) that has no 6 more than a minimal effect on the ability to do basic work activities.’” Webb v. Barnhart, 433 7 F.3d 683, 686 (9th Cir. 2005) (quoting Social Security Ruling (“SSR”) 96–3p (1996)). The step- 8 two severity determination is “merely a threshold determination of whether the claimant is able to 9 perform his past work. Thus, a finding that a claimant is severe at step two only raises a prima 10 facie case of a disability.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). 11 The ALJ’s step-two analysis in this case discussed plaintiff’s fibromyalgia, found that 12 plaintiff’s limited history of fibromyalgia did not amount to a medically determinable 13 impairment, and noted that despite this, plaintiff’s symptoms of chronic pain have been 14 considered in connection with her other severe impairments. AR 24. This is sufficient; even if 15 the ALJ had failed to address plaintiff’s fibromyalgia at all there would be no harmful error so 16 long as the ALJ found at least one severe impairment. Here, because the ALJ found that plaintiff 17 had at least one severe impairment, plaintiff was not prejudiced by any arguable step two error. 18 See Burch, 400 F.3d at 682 (“Assuming without deciding that [the] omission [of an impairment] 19 constituted legal error, it could only have prejudiced Burch in step three ... or step five ... because 20 the other steps, including this one, were resolved in her favor.”). Here, step two was decided in 21 plaintiff’s favor, and the ALJ did consider all of plaintiff’s alleged impairments in the RFC 22 analysis. AR 24. Because all impairments were considered in the RFC, the determination of 23 disability was not impacted by any omission at step two. There is accordingly no error supporting 24 remand. 25 B. The RFC Is Not Supported by Substantial Evidence: Physician Opinion Evaluation 26 Plaintiff alleges that the RFC is not supported by substantial evidence, in large part 27 because “the only examining RFC of record, from CE, Dr. McMillan, substantially limited Ms. 28 Corpuz’s RFC to a less than sedentary level by determining that Ms. Corpuz was limited to 1 standing, sitting and walking for an hour at a time, for four hours per day”—which is less than 2 sedentary. ECF No. 15 at 23. 3 1. The Medical Evidence 4 The ALJ considered the medical opinions of (1) State agency physicians Dr. James 5 Wright and Dr. E. Trias, and (2) examining physician Dr. Eugene McMillan. AR 29. 6 a. Opinions of Drs. Wright and Trias 7 State agency reviewing physicians Dr. Wright and Dr Trias reviewed plaintiff’s medical 8 records and issued opinions regarding plaintiff’s limitations. Dr. Wright found that plaintiff could 9 lift and carry 20 pounds occasionally and 10 pounds frequently; sit, stand, and walk for 6 hours in 10 an 8-hour workday; occasionally climb ramps and stairs; occasionally climb ladders, ropes, and 11 scaffolds, and occasionally stoop, kneel, couch or crawl. AR 66-78. Dr. Trias reviewed the 12 opinion and found that claimant was limited to medium exertion with postural limitations, though 13 no specific postural limitations were given. AR 80-92. The ALJ found these opinions 14 unpersuasive because they did not consider medical evidence presented later in the disability 15 determination process or the hearing testimony, and because they did not adequately consider 16 plaintiff’s subjective complaints. AR 29. 17 b. Opinion of Dr. McMillan 18 Dr. Eugene McMillian conducted a consultative physical exam of plaintiff in October of 19 2017 at the request of the Commissioner. AR 332-37. Dr. McMillan noted that during the exam 20 plaintiff did not use an ambulatory aid but frequently shifted positions from sitting to standing. 21 AR 334. He diagnosed chronic pain disorder, degenerative disease of the lumbar spine, and 22 migraine headaches. AR 335. Dr. McMillan limited plaintiff to standing and walking “for an 23 hour at a time for at least four hours per day. Sitting for an hour at a time for at least four hours 24 per day. She would be able to engage in activities that require stooping kneeling crouching for 25 approximately one third of a workday.” Id. No limitations were assessed with respect to hearing, 26 seeing, speaking, reaching in all directions, fine or gross motor, or environmental limitations 27 related to fermetures, chemicals, or dust. Id. The ALJ found the opinion unpersuasive because it 28 was overly restrictive as to the sit/stand/walk limitations and under-restrictive in the postural and 1 environmental limitations. AR 29. The ALJ stated that the overly restrictive sit/stand/walk 2 limitations were not supported by the evidence of record. Id. 3 2. Principles Governing the ALJ’s Consideration of Medical Opinion Evidence 4 The parties debate the standard that applies to the ALJ’s weighing of medical opinions, an 5 issue that has been impacted by regulatory amendments promulgated by the Social Security 6 Administration (“SSA”) for cases filed after March 27, 2017. The question is whether the 7 amended regulations invalidate the treating physician rule (“TPR”) that has long governed the 8 consideration of treating physician opinions in the Ninth Circuit. 9 The TPR provides that “those physicians with the most significant clinical relationship 10 with the Plaintiff are generally entitled to more weight than those physicians with lesser 11 relationships. As such, the ALJ may only reject a treating or examining physician’s 12 uncontradicted medical opinion based on clear and convincing reasons. Where such an opinion is 13 contradicted, however, it may be rejected for specific and legitimate reasons that are supported by 14 substantial evidence in the record.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 15 1164 (9th Cir. 2008) (internal citations omitted). The 2017 regulations promulgated by the SSA 16 eliminate the deference given to treating physicians in this and other Circuits, providing that the 17 SSA “will not defer or give any specific evidentiary weight, including controlling weight, to any 18 medical opinion(s) . . . including those from your medical sources” for claims filed after March 19 27, 2017. 20 C.F.R. § 416.920c (titled “How we consider and articulate medical opinions and 20 prior administrative findings for claims filed on or after March 27, 2017”) (hereafter “new 21 regulation”). 22 Plaintiff argues that the new regulation does not override prior caselaw establishing the 23 TPR. ECF No. 21 at 3. For the reasons now explained, the court rejects this argument and finds 24 that the new regulation displaces contrary, pre-existing caselaw. 25 Regulatory agencies such as the SSA have broad authority to interpret the statutes they are 26 charged with applying, as long as their regulations are not arbitrary and capricious or contrary to 27 //// 28 //// 1 the statute; courts must defer to validly adopted regulatory interpretations.4 Chevron, U.S.A., Inc. 2 v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Barnhart v. Walton, 535 U.S. 212, 222 3 (2002) (granting Chevron deference to SSA interpretation of duration requirement for disability 4 benefits.) 5 It is a corollary of the Chevron doctrine that, because agencies and not judges are experts 6 in the field, a prior judicial construction of a statute will supersede an agency’s contrary 7 interpretation only in very narrow circumstances. Chevron, 467 U.S. at 865. The Supreme Court 8 has held that “prior judicial construction of a statute trumps an agency construction otherwise 9 entitled to Chevron deference only if the prior court decision holds that its construction follows 10 from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Nat’l 11 Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). 12 The Ninth Circuit’s prior construction of the Social Security Act, recognizing the TPR, 13 was not derived from the unambiguous terms of the statute. Indeed, there is no such 14 unambiguous statutory language—the statute does not address the weight to be given to any type 15 of medical opinion evidence. The TPR evolved with the Court’s own interpretation of the 16 overarching statutory provision that courts can only overturn a decision if it is unsupported by 17 substantial evidence. See 41 U.S.C. § 405(g). In 1975, the Ninth Circuit held that agency 18 adjudicators had to articulate “clear and convincing reasons” for rejecting the “uncontradicted” 19 opinion of a treating doctor, implying a deference to treating sources. Day v. Weinberger, 522 20 F.2d 1154, 1156 (9th Cir. 1975). Neither Day nor other early TPR cases cited statutory language 21 mandating such deference. Rather, like other federal Courts of Appeals, the Ninth Circuit 22 concluded that a decision which ignores evidence provided by a treating physician cannot be 23 supported by substantial evidence. See Broadbent v. Harris, 698 F.2d 407, 412 (10th Cir. 1983). 24 After several other circuits adopted their own versions of the TPR as a rule for weighing 25 medical evidence, the Ninth Circuit followed suit. In 1983, our Circuit agreed with the Fifth, 26 Sixth and Second Circuits’ practice of giving greater weight to the opinions of treating physicians 27 4 Plaintiff does not argue here that the 2017 regulation is arbitrary or capricious, or that its 28 promulgation was otherwise invalid. 1 because of their “greater opportunity to observe and know that patient as an individual.” Murray 2 v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). As the Supreme Court succinctly explained, “[t]he 3 treating physician rule . . . was originally developed by Courts of Appeals as a means to control 4 disability determinations by administrative law judges under the Social Security Act.” Black & 5 Decker Disability Plan v. Nord, 538 U.S. 822, 829 (2003). 6 “In 1991, the Commissioner of Social Security adopted regulations approving and 7 formalizing use of the rule in the Social Security disability program.” Id. In promulgating the 8 SSA rules of 1991, the agency noted that “[n]one of the circuit courts of appeals has held that its 9 treating physician rule is required by the Act or Constitution.” Final Rules, Standards for 10 Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 (1991). The 2017 11 regulations at issue here changed the Agency’s approach. The Agency is free to make such 12 changes, despite extant caselaw, where the judicial interpretations were not themselves compelled 13 by the statutory language. See Brand X, supra, 545 U.S. at 982. 14 The Ninth Circuit has recognized that the Social Security Administration may, by 15 regulation, override the court’s own prior interpretations of the Act. In Lambert v. Saul, 980 F.3d 16 1266 (9th Cir. 2020), the Court of Appeals addressed the conflict between its precedent 17 establishing a presumption of continuing disability after a prior disability determination, and the 18 SSA’s interpretation of the 1983 Reform Act which found that no such presumption was available 19 under the statute. Id. at 1268. In deferring to the agency’s interpretation despite its own contrary 20 precedent, the Lambert court noted that there are limited circumstances in which a court’s own 21 precedent is not controlling, and the court is in fact required to depart from it. Id. “Those 22 circumstances include the intervening higher authority of an administrative agency’s authoritative 23 and reasonable interpretation of a statute.” Id. Finding first that the SSA’s interpretation was 24 entitled to deference under Chevron, the Court of Appeals further concluded that “the SSA’s 25 authoritative interpretation of the Social Security Act displaces our prior precedents on the issue 26 of a presumption of continuing disability.” Id. at 1275. This conclusion was compelled by Brand 27 X, because the Ninth Circuit precedents adopting the presumption had been based on the 28 persuasive authority of other Circuit Courts of Appeals and not on any mandatory language of the 1 statute that foreclosed agency interpretation. Id. The TPR was likewise adopted by the Ninth 2 Circuit based on the persuasive authority of other Circuit Courts of Appeals and not on any 3 mandatory language of the statute that foreclosed agency interpretation. Accordingly, the 4 undersigned concludes that the new regulations regarding the evaluation of medical opinion 5 evidence displace the Ninth Circuit’s prior precedents implementing the TPR. 6 Few courts have yet addressed the question whether the 2017 regulations displace the 7 TPR, but Brand X and Lambert provide a clear path. “Only a judicial precedent holding that the 8 statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for 9 the agency to fill, displaces a conflicting agency construction.” Brand X, 545 U.S. at 982-983. 10 None of the Ninth Circuit’s TPR cases constitute such a precedent. Accordingly, the agency was 11 free to displace the judicially created rule by regulation. See Lambert, 980 F.3d at 1268, 1275. 12 Because the TPR is inconsistent with the new regulation, the court concludes that the 2017 13 regulations effectively displace or override it. 14 Although the undersigned rejects plaintiff’s argument that the Ninth Circuit’s TPR 15 caselaw survives the 2017 regulations, this conclusion means only that Dr. McMillan’s opinion 16 was not entitled to some degree of deference. The 2017 regulations do away with presumptively 17 different weights for medical opinions depending on the relationship of the claimant to the 18 evaluating doctor, but impose new articulation requirements for the ALJ’s reasoning about the 19 weight given to particular medical opinions. The court now turns to that issue. 20 3. The ALJ Improperly Rejected Dr. McMillan’s Opinion 21 The ALJ found that Dr. McMillan’s opinion was overly restrictive and not supported by 22 the other objective evidence of record, and that Dr. Wright’s postural and environmental 23 limitations were more consistent with the totality of medical evidence. AR 29. Even under the 24 2017 rules, however, the ALJ’s analysis of Dr. McMillan’s opinion is deficient. The ALJ failed 25 to meaningfully address the two key factors identified in the 2017 regulations: consistency and 26 supportability. 20 C.F.R. § 404.1520c(b)(2) (“Therefore, we will explain how we considered the 27 supportability and consistency factors for a medical source’s medical opinions or prior 28 administrative medical findings in your determination or decision.”). The unsupported and 1 conclusory statement that the sit/stand/walk limitations are “not supported by the other objective 2 evidence of record” is not sufficient. Without weighting Dr. McMillan’s opinion more heavily 3 than the other medical opinions, it remains the case that “an ALJ errs when he rejects a medical 4 opinion or assigns it little weight while doing nothing more than ignoring it, asserting without 5 explanation that another medical opinion is more persuasive, or criticizing it with boilerplate 6 language that fails to offer a substantive basis for his conclusion.” Garrison v. Colvin, 759 F.3d 7 995, 1012–13 (9th Cir. 2014). The ALJ’s rejection of Dr. McMillan’s opinion is conclusory and 8 unsupported, and therefore requires remand for reconsideration. 9 C. The RFC is Not Supported by Substantial Evidence: Subjective Testimony 10 Plaintiff alleges that the ALJ improperly discredited her subjective pain testimony by (1) 11 failing to use clear and convincing evidence to discredit plaintiff, and (2) effectively requiring 12 plaintiff to produce objective evidence to support her claims of pain and fatigue. ECF No. 15 at 13 27. Upon review of the record, the court agrees with plaintiff that the ALJ properly did not 14 properly address her subjective testimony. 15 “To determine whether a claimant’s testimony regarding subjective pain or symptoms is 16 credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 17 1035–36 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has presented 18 objective medical evidence of an underlying impairment ‘which could reasonably be expected to 19 produce the pain or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 20 341, 344 (9th Cir. 1991)). “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.” Id. (citations omitted) 23 (quotation marks omitted). Further, “[t]he ALJ may not reject subjective symptom testimony . . . 24 simply because there is no showing that the impairment can reasonably produce the degree of 25 symptom alleged.” Lingenfelter, 504 F.3d at 1035–36 (quoting Smolen, 80 F.3d at 1282); cf. 26 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Once the claimant produces medical 27 evidence of an underlying impairment, the Commissioner may not discredit the claimant’s 28 testimony as to the severity of symptoms merely because they are unsupported by objective 1 medical evidence.” (citing Bunnell, 947 F.2d at 343)). A claimant is not required to “produce 2 ‘objective medical evidence of the pain or fatigue itself, or the severity thereof.’” Garrison v. 3 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1282). 4 Plaintiff testified that she suffers from migraines three to four times a month that last one 5 to two days; that she takes Relpax and must go to a dark room/quiet space during a migraine (AR 6 51); that the pain in her back radiates into her right leg and right hip and into the right leg; that if 7 she is standing or walking, after 10 minutes she starts to feel sciatica pain, making walking it 8 difficult; that after sitting for 10 minutes, she must stand up and change. positions; that she can 9 only stand in one spot for groceries in line for less than 10 minutes; that she can only walk a 10 block without having to take a break (AR 52); that she can only carry a gallon of milk with both 11 hands; that she drops things often due to issues with gripping, grasping or reaching; that she gets 12 pain in her right shoulder if she reaching; that she drops things often due to the medication 13 making her “sleepy;” that she has difficulty both with reaching forward and outward (AR 53); 14 that she performs household chores in increments of 20 minutes with a break of 30 minutes to an 15 hour; that she has problems sleeping at night due to anxiety; that she only gets three to four hours 16 of sleep per night; that she wakes up tired (AR 54); that she spends two to three hours a day 17 napping during the day; that she needs to elevate her legs when she has pain; that she lies down 18 and puts her legs up on the ottoman; that she elevates her legs every day for an hour with a 19 heating pad or ice (AR 55); that she has “bad” days where she is not able to do anything at all at 20 least two times a week or 8 days a month; that her “bad” days are caused by “overall pain, lack of 21 sleep, my anxiety, my depression;” that she needs help with personal care; and that her husband 22 helps her bathe due to her back pain. (AR 56). 23 The ALJ found plaintiff’s medically determinable impairments could reasonably be 24 expected to cause the alleged symptoms, but that “her allegations regarding the persistence, 25 intensity, and limiting effects were not entirely consistent with the medical evidence and other 26 evidence in the record for the reasons explained in [the] decision.” AR 27. The only clear reason 27 provided in the opinion was that “objective evidence, including large gaps in treatment, generally 28 mild physical examination finings, and overall conservative treatment with good response are not 1 consistent with the claimant’s allegations of symptoms and limited activities.” AR 28. The court 2 agrees with plaintiff that this is not an adequate basis to reject her credibility. 3 Though a lack of medical evidence supporting plaintiff’s pain allegations is a factor that 4 the ALJ can consider in the credibility analysis, Burch, 400 F.3d at 681, it is insufficient without 5 more to discredit a plaintiff’s symptom testimony. “[T]he Ninth Circuit has repeatedly 6 emphasized that, ‘in evaluating the credibility of pain testimony after a claimant produces 7 objective medical evidence of an underlying impairment, an ALJ may not reject a claimant’s 8 subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged 9 severity of pain.’” Ondracek v. Comm’r of Soc. Sec., No. 1:15-CV-01308-SKO, 2017 WL 10 714374, at *8 (E.D. Cal. Feb. 22, 2017) (alteration in original) (quoting Burch, 400 F.3d at 680); 11 see also, e.g., Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“[S]ubjective pain 12 testimony cannot be rejected on the sole ground that it is not fully corroborated by objective 13 medical evidence....”). Though the ALJ also mentions in passing conservative treatment and gaps 14 in treatment, no specific correlations are made to tie this conclusory statement to plaintiff’s actual 15 pain testimony. The ALJ “must provide clear and convincing reasons to reject a claimant’s 16 subjective testimony, by specifically identifying what testimony is not credible and what evidence 17 undermines the claimant’s complaints.” Garrison, 759 F.3d at 1014 (internal citations omitted). 18 The ALJ did not adequately address plaintiff’s subjective testimony and must reconsider the 19 testimony on remand. 20 D. Plaintiff Has Not Met Her Burden to Show She Meets Listing 1.04A 21 Plaintiff alleges that she put forth evidence in the pre-hearing brief to establish the 22 severity of her multiple disorders equal the listing 1.04A, and the ALJ erred by failing to address 23 the issue of equivalence at step three. ECF No. 15 at 30-31. If a claimant has an impairment or 24 combination of impairments that meets or equals a condition outlined in the “Listing of 25 Impairments,” then the claimant is presumed disabled at step three, and the ALJ need not make 26 findings as the claimant’s ability to perform past relevant work or any other jobs. 20 C.F.R. § 27 404.1520(d). “An ALJ must evaluate the relevant evidence before concluding that a claimant’s 28 impairments do not meet or equal a listed impairment. A boilerplate finding is insufficient to 1 support a conclusion that a claimant’s impairment does not do so.” Lewis v. Apfel, 236 F.3d 503, 2 512 (9th Cir. 2001). “An ALJ is not required to discuss the combined effects of a claimant’s 3 impairments or compare them to any listing in an equivalency determination, unless the claimant 4 presents evidence in an effort to establish equivalence.” Burch v. Barnhart, 400 F.3d 676, 683 5 (9th Cir. 2005). 6 “Listed impairments are purposefully set at a high level of severity because ‘the listings 7 were designed to operate as a presumption of disability that makes further inquiry unnecessary.’” 8 Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 493 U.S. 521 9 (1990)). “For a claimant to show that his impairment matches a listing, it must meet all of the 10 specified medical criteria.” Zebley, 493 U.S. at 530. Similarly, “[f]or a claimant to qualify for 11 benefits by showing that his unlisted impairment, or combination of impairments, is ‘equivalent’ 12 to a listed impairment, he must present medical findings equal in severity to all the criteria for the 13 most similar listed impairment. Kennedy, 738 F.3d at 1175. “A claimant cannot qualify for 14 benefits under the ‘equivalence’ step by showing that the overall functional impact of his unlisted 15 impairment or combination of impairments is as severe as that of a listed impairment.” Id. at 16 1176. 17 Listing § 1.04A reads as follows: 18 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc 19 disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With: 20 A. Evidence of nerve root compression characterized by neuro- 21 anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle 22 weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test 23 (sitting and supine); “[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of 24 the motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex 25 loss, and if there is involvement of the lower back, positive straight- leg raise test (sitting and supine). 26 27 20 C.F.R. Part 404, Subpt. P, App. 1, § 1.04A. Here, at step three and with respect to listing 28 1.04A, the ALJ found that “[w]hile the claimant had evidence of lumbar spinal stenosis and 1 degenerative disc disease, she did not have motor loss accompanied by sensory or reflex loss as 2 required to meet listing 1.04A. Additionally, while there was some evidence of compromise of a 3 nerve root, it did not include the cauda equina as needed to meet 1.04A.” AR 24. 4 The court finds this non-boilerplate analysis to be adequate. Plaintiff argues that it was 5 error for the ALJ not to expressly address equivalency. ECF No. 21 at 10. The court disagrees. 6 Although plaintiff did put forth a pre-hearing brief that asserted her impairments “meet or 7 medically equal listing 1.04,” that brief does not specifically address equivalency and does not 8 explain how, despite plaintiff’s failure to meet the actual criteria of listing 1.04A, her impairments 9 are equal in severity to the listing. AR 286-88. Though plaintiff’s brief mentions some reduced 10 motor strength (AR 287), nothing indicates she experienced motor loss with sensory or reflex loss 11 or anything equal in severity to that criteria. Plaintiff did not present “medical findings equal in 12 severity to all the criteria for the most similar listed impairment;” the ALJ did not err. Kennedy, 13 738 F.3d at 1175. 14 E. Remand 15 The undersigned agrees with plaintiff that the ALJ’s RFC error is harmful and that remand 16 for further proceedings by the Commissioner is necessary. An error is harmful when it has some 17 consequence on the ultimate non-disability determination. Stout v. Comm’r, Soc. Sec. Admin., 18 454 F.3d 1050, 1055 (9th Cir. 2006). The ALJ’s error in this matter was harmful; Dr. McMillan’s 19 opinion and plaintiff’s testimony, properly considered, may very well result in a more restrictive 20 residual functional capacity assessment, which may in turn alter the finding of non-disability. 21 It is for the ALJ to determine in the first instance whether plaintiff has severe impairments 22 and, ultimately, whether she is disabled under the Act. See Marsh v. Colvin, 792 F.3d 1170, 1173 23 (9th Cir. 2015) (“the decision on disability rests with the ALJ and the Commissioner of the Social 24 Security Administration in the first instance, not with a district court”). “Remand for further 25 administrative proceedings is appropriate if enhancement of the record would be useful.” 26 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Here, the ALJ failed to properly 27 consider Dr. McMillan’s opinion and plaintiff’s testimony. Further development of the record 28 //// 1 | consistent with this order is necessary, and remand for further proceedings is the appropriate 2 || remedy. 3 VII. CONCLUSION 4 For the reasons set forth above, IT IS HEREBY ORDERED that: 5 1. Plaintiffs motion for summary judgment (ECF No. 15), is GRANTED; 6 2. The Commissioner’s cross-motion for summary judgment (ECF No. 18), is DENIED; 7 3. The Commissioner’s motion to file a sur-reply (ECF No. 22) is DENIED; 8 4. This matter is REMANDED to the Commissioner for further consideration consistent 9 | with this order; and 10 5. The Clerk of the Court shall enter judgment for plaintiff and close this case. 11 || DATED: March 1, 2021 . 12 Gottuon Clone 13 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18