(SS) Cruz v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KATY CRUZ, ) Case No.: 1:21-cv-1248 JLT HBK ) 12 Plaintiff, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS, DENYING 13 v. ) PLAINTIFF’S MOTION FOR SUMMARY ) JUDGMENT, GRANTING DEFENDANT’S 14 KILOLO KIJAKAZI, ) CROSS-MOTION FOR SUMMARY Acting Commissioner of Social Security, ) JUDGMENT, AND AFFIRMING THE 15 ) DECISION OF THE COMMISSIONER OF ) SOCIAL SECURITY 16 Defendant. ) ) (Docs. 16, 18, 20) 17 ) 18 Katy Cruz seeks judicial review of a final decision of the Commissioner of Social Security 19 denying her application for supplemental security income. (Doc. 1.) Plaintiff asserts the 20 administrative law judge erred by finding opinions from Bounmee Vang FNP-C were “not 21 persuasive” and discounting the opinion of Dr. Pauline Bonilla, who performed a consultative 22 mental examination. (Doc. 16.) 23 I. Findings and Recommendations of the Magistrate Judge 24 On February 1, 2023, the magistrate judge found “the ALJ properly considered medical 25 opinion evidence.” (Doc. 20 at 12.) As an initial matter, the magistrate judge observed the 26 limitations that Plaintiff attributed to Ms. Vang were made by Dr. Atmajian. (Id. at 7, n.2.) 27 Regardless, the magistrate judge found it was “undisputed that the opinions of Ms. Vang and Dr. 28 Atmajian do not include any supporting explanation; thus, it was reasonable for the ALJ to find 1 them was less persuasive.” (Id. at 8.) The magistrate judge found treatment notes— to which 2 Plaintiff directed the Court’s attention—did “not provide any arguable explanation of the bases 3 for the severe limitations assessed by Ms. Vang and Dr. Atmajian in the check-box opinion.” 4 (Id.) The magistrate judge concluded: “After viewing the ALJ’s reasoning in light of the record 5 as a whole, … the ALJ’s finding that the opinions of Ms. Vang and Dr. Atmajian[] were not 6 persuasive was supported by substantial evidence after proper consideration of the supportability 7 and consistency factors.” (Id. at 10.) Similarly, the magistrate judge found “the ALJ’s 8 conclusion that Dr. Bonilla’s opinion was only partially persuasive was supported by substantial 9 evidence after consideration of the supportability and consistency factors.” (Id. at 12.) Thus, the 10 magistrate judge recommended the Commissioner’s decision be affirmed; Plaintiff’s motion for 11 summary judgment be denied; the Commissioner’s cross-motion be granted; and the Clerk of 12 Court be directed to enter judgment in favor of the Commissioner. (Id. at 12-13.) 13 II. Objections 14 Plaintiff filed objections to the Findings and Recommendations, asserting “[t]he 15 Magistrate Judge’s finding that the ALJ properly evaluated the opinions from FNP Vang/Dr. 16 Atmajan and Dr. Bonilla should be rejected.” (Doc. 21 at 2.) Plaintiff contends the magistrate 17 judge “erroneously analyzes the objective findings where the ALJ did not, and this post-hoc 18 attempt to shore-up the ALJ’s decision should be rejected.” (Id.) Plaintiff asserts the magistrate 19 judge “weigh[ed] the objective findings for the ALJ, and [made] a determination that the 20 objective findings observed by FNP Vang and Dr. Atmajan are insufficiently supportive of the 21 opinion.” (Id. at 3.) Plaintiff maintains the ALJ “cherry-picked reference[s] to the normal 22 findings” to discount the limitations of Vang and Dr. Atmajan, and failed “to acknowledge and 23 reconcile [the] analysis with the abnormal objective findings of record.” (Id. at 4.) Plaintiff 24 contends the ALJ also “simply cherry-picked the facts consistent with her conclusion and ignored 25 the evidence that supported Dr. Bonilla’s opinion, failing to explain her reconciliation of the 26 conflicting findings.” (Id. at 4.) In particular, Plaintiff contends the ALJ ignored her “impaired 27 concentration,” “dysphoric mood,” and “inability to perform simple math calculations.” (Id. at 28 5.) 1 III. Discussion and Analysis 2 A district judge may “accept, reject or modify, in whole or in part, the findings and 3 recommendations...” 28 U.S.C. § 636(b)(1). If objections are filed, “the court shall make a de 4 novo determination of those portions of the report or specified proposed finding or 5 recommendations to which objection is made.” Id. A de novo review requires the court to 6 “consider[] the matter anew, as if no decision had been rendered.” Dawson v. Marshall, 561 F.3d 7 930, 932 (9th Cir. 2009). 8 A. Evaluating Medical Opinions1 9 The regulations direct ALJs to determine how persuasive a medical opinion is according 10 to the following factors: supportability, consistency, relationship with the claimant, specialization, 11 and other factors showing the medical source’s “familiarity with … other evidence in the record 12 or an understanding of [the] disability program’s policies and evidentiary requirements.” 20 13 C.F.R. §§ 416.920c(c)(1)-(5). An ALJ is only required to discuss supportability and consistency, 14 which are the most important factors “when evaluating the persuasiveness of medical opinions.” 15 Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022) (quoting 20 C.F.R. § 404.1520c(a)); see also 16 20 C.F.R. § 416.920c(b)(2) (“we will explain how we considered the supportability and 17 consistency factors for a medical source’s medical opinions or prior administrative medical 18 findings in your determination or decision. We may, but are not required to, explain how we 19 considered the [remaining] factors in paragraphs (c)(3) through (c)(5) of this section…”). 20 The supportability inquiry is an assessment of “the extent to which a medical source 21 supports the medical opinion by explaining the relevant objective medical evidence.” Woods, 32 22 F.4th at 791-792 (internal quotation marks omitted). The regulations provide:

23 The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her 24 medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) 25 will be. 26 1 For applications filed on or after March 27, 2017, the Commissioner revised the rules for the evaluation of medical 27 evidence at the administrative level. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg 5844-01 (Jan. 18, 2017). Because Plaintiff filed her application on December 5, 2018 (Doc. 10- 28 2 at 40), Plaintiff’s claim is subject to the revised rules. 1 20 C.F.R. § 416.920c(c)(1). On the other hand, consistency compares an opinion with other 2 evidence to determine its persuasiveness. See Woods, 32 F.4th at 792. With the “consistency” 3 factor, the regulations explain:

4 The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and 5 nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 6 7 20 C.F.R. § 416.920c(c)(2). The Ninth Circuit observed that an ALJ must explain how both the 8 supportability and consistency factors were considered, and “[e]ven under the new regulations, an 9 ALJ cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent 10 without providing an explanation supported by substantial evidence.” Woods, 32 F.4th at 792. 11 B. Opinions from Ms. Vang and Dr. Atmajian 12 The ALJ observed that Bounmee Vang, FNPC and Timothy Atmajian, M.D., opined 13 Plaintiff “could lift and carry 10 pounds occasionally, sit for two to four hours total, and stand 14 and/or walk for two to four hours total in a workday;” could never stoop;” and she “could 15 occasionally climb, balance, kneel, crouch, crawl, and reach.” (Doc. 10-2 at 48; see also id. at 16 454-457.) The ALJ found these opinions were “not persuasive.” (Id.) In support of this 17 conclusion the ALJ stated: “These opinions are not supported by citation to any objective medical 18 evidence. Moreover, these opinions are inconsistent with the objective medical evidence in the 19 record, including observations of normal dorsolumbar range of motion, full strength in the 20 claimant’s extremities, normal gait, and negative straight leg raise testing.” (Id., citing Exh. 8F; 21 14F/3; 13F/5; 15F/3, 68 [Doc. 10-2 at 534-539, 566, 570, 657, 722].) 22 By finding that Ms. Vang and Dr. Atmajian did not include “citation to any objective 23 medical evidence,” the ALJ properly evaluated the supportability factor. Under the new 24 regulations, the supportability inquiry is “geared toward assessing how well a medical source 25 supported and explained” his or her opinion. Cuevas v. Comm’r of Soc. Sec., 2021 WL 363682 at 26 *10 (S.D.N.Y. Jan. 29, 2021). As the magistrate judge observed, it was undisputed that the form 27 completed by Ms. Vang and Dr. Atmajian does not “include any supporting explanation.” (Doc. 28 20 at 8, citing Doc. 16 at 12 [Plaintiff’s opening brief, observing “Vang did not offer a supporting 1 explanation”].) The lack of explanation by Ms. Vang and Dr. Atmajian, supports the ALJ’s 2 conclusion that the opinion is not persuasive. See 20 C.F.R. § 416.920c(c)(1). 3 Furthermore, the ALJ identified objective findings that undermined the limitations 4 identified by Ms. Vang and Dr Atmajian, including range of motion, strength, gait, and negative 5 straight leg raising. (Doc. 10-2 at 48.) Although Plaintiff contends the ALJ “cherry-picked” 6 objective findings to support her decision, the ALJ summarized the medical record and identified 7 abnormal objective medical evidence in the record also indicated Plaintiff exhibited tenderness, 8 pain with palpation, and some pain with range of motion. (See id. at 45, 47.) Thus, the ALJ did 9 not ignore other evidence in the record. See 42 U.S.C. § 423(d)(5)(B) (requiring an ALJ base the 10 decision on “all the evidence available in the [record]”); see also Lamb v. Kijakazii, 2022 WL 11 3908308, at *6 (E.D. Cal. Aug. 29, 2022) (rejecting an argument that the ALJ cherry-picked the 12 evidence where a review of the decision showed that the ALJ discussed “normal and abnormal… 13 examination findings alike”) Because the ALJ discussed both normal and abnormal findings— 14 and identified objective records that were inconsistent with the limitations identified by Ms. Vang 15 and Dr. Atmajian—the consistency factor supports the ALJ’s conclusion that the opinion is not 16 persuasive. See 20 C.F.R. § 416.920c(c)(2). 17 B. Opinion from Dr. Bonilla 18 Dr. Pauline Bonilla performed a consultative mental examination of Plaintiff, and the ALJ 19 summarized her findings as follows:

20 According to Dr. Bonilla, the claimant’s ability to perform simple and repetitive tasks is mildly impaired and her ability to perform detailed 21 and complex tasks is moderately impaired. Additionally, Dr. Bonilla determined the claimant’s ability to accept instructions from 22 supervisors is mildly impaired and her ability to interact with coworkers and the public is moderately impaired. She determined the 23 claimant’s ability to sustain an ordinary routine without special supervision and her ability to maintain regular attendance in the 24 workplace are mildly impaired. Dr. Bonilla opined the claimant’s ability to complete a normal workday/workweek without interruptions 25 from a psychiatric condition is moderately impaired. Moreover, she indicated the claimant’s ability to deal with stress and changes 26 encountered in the workplace is moderately impaired. She reported that the likelihood of the claimant emotionally deteriorating in a work 27 environment is moderate. 28 (Doc. 10-2 at 48.) The ALJ found these opinions were “partially persuasive,” explaining: 1 While the undersigned finds the claimant has moderate limitations in interacting with others and in concentrating, persisting, and 2 maintaining pace, Dr. Bonilla’s opinions are vague as she did not provide an opinion regarding the claimant’s specific work-related 3 limitations. Further, Dr. Bonilla’s opinions regarding the claimant’s ability to deal with stress and changes encountered in the workplace 4 and to complete a normal workday/workweek without interruptions from a psychiatric condition are overly restrictive and inconsistent 5 with Dr. Bonilla’s observations during the consultative examination. Specifically, Dr. Bonilla observed the claimant to have normal insight, 6 judgment, and concentration. She also observed the claimant to have appropriate thought process and the claimant denied suicidal ideation 7 (Exhibit 5F). This portion of the opinion is also inconsistent with the normal findings on mental status examinations, including that she had 8 good insight, unimpaired judgment, and coherent, relevant, and logical thought process. The claimant was also in no acute distress and had 9 normal behavior (Exhibits 7F/27; 8F; 15F/3, 69, 83, 114). 10 (Id. at 48-49.) As the magistrate judge found, the ALJ properly explained how both the 11 supportability and consistency factors were considered according to the new regulations. The 12 findings related to the vagueness of the opinion relate to the supportability of the medical opinion 13 from Dr. Bonilla. See Bissmeyer v. Kijakazi, 2023 WL 1099161, at *7 (E.D. Cal. Jan. 30, 2023) 14 (“As to apparent supportability, the ALJ also found Dr. Serra’s sitting limitation ‘somewhat 15 vague’ because Dr. Serra did not specify whether Plaintiff was limited to sitting up to four hours 16 at one time or four hours total in an eight-hour workday”); see also Ramirez v. Comm’r of Soc. 17 Sec. Admin., 2022 WL 3443677 at *7, (D. Ariz. Aug. 17, 2022) (ALJ addressed supportability of 18 medical opinion by noting the provider relied on vague terms to describe the degree of Plaintiff’s 19 limitations); Roxane D. v. Kijakazi, 2023 WL 2838121, at *3 (D. Minn. Feb. 13, 2023) (“though 20 the ALJ did not use the word supportability, his decision to disregard the opinion for vagueness 21 necessarily evaluates supportability”). 22 Contrary to Plaintiff’s assertion, the ALJ did not ignore all abnormal examination findings 23 from Dr. Bonilla but noted that Plaintiff presented with a dysphoric mood at the consultative 24 examination. (See Doc. 10-2 at 46.) Despite Plaintiff’s mood, Dr. Bonilla determined Plaintiff 25 “had appropriate thought content,” “was able to recall three out of three objects after five 26 minutes,” and her “concentration was within normal limits and her remote memory appeared 27 intact.”2 (Id.) The ALJ found the “moderate[]” impairments that Dr. Bonilla identified were

28 2 Contrary to Plaintiff’s assertion, the findings from Dr. Bonilla do not indicate that Plaintiff had “impaired 1 inconsistent with the other normal findings— including those made by Dr. Bonilla and other 2 evidence in the record—regarding Plaintiff’s insight, judgment, thought process, and behavior.3 3 (Id. at 49.) Given the identified inconsistencies between Dr. Bonilla’s opinion and objective 4 findings in the record, the ALJ properly performed the consistency analysis in explaining why the 5 opinion was only “partially persuasive.” See 20 C.F.R. § 416.920c(c)(2). 6 IV. Conclusion and Order 7 Pursuant to 28 U.S.C. § 636 (b)(1)(c), this Court conducted a de novo review of the case. 8 Having carefully reviewed the entire matter, including Plaintiff’s objections, the Court finds the 9 Findings and Recommendations are supported by the record and proper analysis. Because ALJ 10 applied the proper legal standards, and the decision was supported by substantial evidence in the 11 record, the administrative decision is affirmed. See Sanchez v. Sec’y of Health & Human Serv., 12 812 F.2d 509, 510 (9th Cir. 1987); see also Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 13 1992) (“The trier of fact and not the reviewing court must resolve conflicts in the evidence, and if 14 the evidence can support either outcome, the court may not substitute its judgment for that of the 15 ALJ”). Based upon the foregoing, the Court ORDERS: 16 1. The Findings and Recommendations issued on February 1, 2023 (Doc. 20) are 17 ADOPTED in full. 18 2. Plaintiff’s Motion for Summary Judgment (Doc. 16) is DENIED. 19 3. Defendant’s Cross-Motion for Summary Judgment (Doc. 18) is GRANTED, and 20 the decision of the Commissioner of Social Security is AFFIRMED. 21 4. The Clerk of Court is directed to terminate any pending motions and deadlines; 22 concentration for serial 3’s.” (Doc. 21 at 5.) Rather, Dr. Bonilla explicitly opined Plaintiff’s “concentration was 23 within normal limits.” (Doc. 10-2 at 461, emphasis added.) Although Plaintiff did exhibit “some difficulty” with the math calculations she was asked to perform, there is nothing in the cited medical report to support a conclusion that 24 Dr. Bonilla believed the math difficulties resulted from impaired concentration. (See id.)

25 3 The ALJ did not address Plaintiff’s inability to calculate “serials threes” at the consultative examination. (See Doc. 21 at 5.) Despite finding Plaintiff “had some difficulty performing simple mathematical calculations and serial 3s,” Dr. Bonilla concluded Plaintiff’s concentration was normal and Plaintiff was only “mildly impaired” with the “ability 26 to perform simple and repetitive tasks.” (Doc. 10-2 at 461, 462.) Ultimately, the ALJ determined in the residual functional capacity that Plaintiff was able to perform “simple, routine, repetitive work” (id. at 44), which is clearly 27 consistent with the opinion of Dr. Bonilla given after the examination. Consequently, any error by omitting reference to Plaintiff’s ability to perform serial 3s was harmless. See Monila v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) 28 (errors are harmless if they are “inconsequential to the ultimate nondisability determination”). 1 enter judgment in favor of defendant Kilolo Kijakazi, Acting Commissioner of 2 Social Security, and against Plaintiff Katy Cruz; and to close this case. 3 4 IT IS SO ORDERED. 5 Dated: _ June 20, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28