(SS) Kessler v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: May 1, 2024
• Docket: 2:23-cv-01416
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAURA MARIE KESSLER, No. 2:23-cv-01416 AC 12 Plaintiff, 13 v. ORDER 14 MARTIN O’MALLEY, Acting 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 Supplemental Security Income (“SSI”) under 20 Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381-1383f.1 For the reasons that 21 follow, the court will grant plaintiff’s motion for summary judgment and deny the 22 Commissioner’s cross-motion for summary judgment. 23 I. PROCEDURAL BACKGROUND 24 Plaintiff applied for supplemental security income on March 24, 2021. Administrative 25

26 1 SSI is paid to financially needy disabled persons. 42 U.S.C. § 1382(a); Washington State Dept. of Social and Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 375 (2003) 27 (“Title XVI of the Act, § 1381 et seq., is the Supplemental Security Income (SSI) scheme of benefits for aged, blind, or disabled individuals, including children, whose income and assets fall 28 below specified levels . . .”). 1 Record (“AR”) 212.2 Plaintiff alleged the disability onset date was March 15, 2017. Id. The 2 application was disapproved initially (AR 126-130), and on reconsideration (AR 131-134). On 3 July 12, 2022, ALJ Matilda Surh presided over hearings on plaintiff’s challenge to the 4 disapprovals. AR 35-71 (transcript). Plaintiff was present and testified. AR 35. She was 5 represented at the hearing by attorney Jeffrey Milam. Id. Victoria Rei, a vocational expert, also 6 testified. Id. 7 On August 17, 2022, the ALJ issued an unfavorable decision, finding plaintiff “not 8 disabled” under Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). 9 AR 17-30 (decision). On May 18, 2023, the Appeals Council denied plaintiff’s request for 10 review, leaving the ALJ’s decision as the final decision of the Commissioner of Social Security. 11 AR 1-3 (decision). 12 Plaintiff filed this action on July 17, 2023. ECF No. 1; see 42 U.S.C. §§ 405(g), 1383c(3). 13 The parties consented to the jurisdiction of the magistrate judge. ECF No. 9. The parties’ cross- 14 motions for summary judgment, based upon the Administrative Record filed by the 15 Commissioner, have been fully briefed. ECF Nos. 11 (plaintiff’s summary judgment motion), 15 16 (Commissioner’s summary judgment motion), 16 (plaintiff’s reply). 17 II. FACTUAL BACKGROUND 18 Plaintiff was born in 1969, and accordingly was 52 years old when she filed her 19 application. AR 212. Plaintiff has a limited education. AR 239. 20 III. LEGAL STANDARDS 21 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 22 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 23 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 24 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 25 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 26 Substantial evidence is “more than a mere scintilla,” but “may be less than a 27 preponderance.” Molina v. Astrue , 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such

28 2 The AR is electronically filed at ECF Nos. 10 to 10-1 (AR 1 to AR 703). 1 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 2 Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While 3 inferences from the record can constitute substantial evidence, only those ‘reasonably drawn from 4 the record’ will suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation 5 omitted). 6 Although this court cannot substitute its discretion for that of the Commissioner, the court 7 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 8 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 9 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 10 court must consider both evidence that supports and evidence that detracts from the ALJ’s 11 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 12 “The ALJ is responsible for determining credibility, resolving conflicts in medical 13 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 14 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 15 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 16 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 17 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 18 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 19 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 20 evidence that the ALJ did not discuss”). 21 The court will not reverse the Commissioner’s decision if it is based on harmless error, 22 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 23 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 24 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 25 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 26 IV. RELEVANT LAW 27 Supplemental Security Income is available for every eligible individual who is “disabled.” 28 42 U.S.C. § 1381a. Plaintiff is “disabled” if she is “‘unable to engage in substantial gainful 1 activity due to a medically determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 2 482 U.S. 137, 140 (1987) (quoting identically worded provisions of 42 U.S.C. § 1382c(a)(3)(A). 3 The Commissioner uses a five-step sequential evaluation process to determine whether an 4 applicant is disabled and entitled to benefits. 20 C.F.R. § 416.920(a)(4); Barnhart v. Thomas, 540 5 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation process to determine 6 disability” under Title II and Title XVI). The following summarizes the sequential evaluation: 7 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 8 20 C.F.R. § 416.920(a)(4)(i), (b). 9 Step two: Does the claimant have a “severe” impairment? If so, 10 proceed to step three. If not, the claimant is not disabled. 11 Id., § 416.920(a)(4)(ii), (c). 12 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 13 Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. 14 Id., § 416.920(a)(4)(iii), (d). 15 Step four: Does the claimant’s residual functional capacity make him 16 capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 17 Id., § 416.920(a)(4)(iv), (e), (f). 18 Step five: Does the claimant have the residual functional capacity 19 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 20 Id., § 416.920(a)(4)(v), (g). 21 22 The claimant bears the burden of proof in the first four steps of the sequential evaluation 23 process. 20 C.F.R. § 416.912(a) (“In general, you have to prove to us that you are blind or 24 disabled”); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the sequential analysis, 25 the burden shifts to the Commissioner to demonstrate that the claimant is not disabled and can 26 engage in work that exists in significant numbers in the national economy.” Hill v. Astrue, 698 27 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 28 //// 1 V. THE ALJ’s DECISION 2 The ALJ made the following findings: 3 1. [Step 1] The claimant has not engaged in substantial gainful activity since March 24, 2021, the application date (20 CFR 416.971 4 et seq.). 5 2. [Step 2] The claimant has the following severe impairments: mild right hand arthritis, bipolar disorder, and polysubstance abuse in 6 reported remission (20 CFR 416.920(c)). 7 3. [Step 3] The claimant does not have an impairment or combination of impairments that meets or medically equals the 8 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). 9 4. [Preparation for Step 4] After careful consideration of the entire 10 record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 11 416.967(b) except the claimant can frequently climb ramps and stairs and occasionally climb ladders, ropes, or scaffolds. The claimant can 12 frequently stoop, kneel, crouch, and crawl. The claimant can frequently handle and finger with the right, non-dominant upper 13 extremity. The claimant can perform simple, routine, and repetitive tasks. The claimant can maintain attention and concentration for two 14 hour increments with normal breaks. The claimant can have occasional public contact. 15 5. [Step 4] The claimant has no past relevant work (20 CFR 416.965). 16 6. [Step 5] The claimant was born [in] 1969 and was 52 years old, 17 which is defined as an individual closely approaching advanced age, on the date the application was filed (20 CFR 416.963). 18 7. [Step 5, continued] The claimant has limited education (20 CFR 19 416.964). 20 8. [Step 5, continued] Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 21 416.968). 22 9. [Step 5, continued] Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that 23 exist in significant numbers in the national economy that the claimant can perform (20 CF'R 416.969 and 416.969(a)). 24 10. The claimant has not been under a disability, as defined in the 25 Social Security Act, since March 24, 2021, the date the application was filed (20 CFR 416.920(g)). 26 27 AR 19-30. As noted, the ALJ concluded that plaintiff was “not disabled” under 28 Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 30. 1 VI. ANALYSIS 2 Plaintiff alleges the ALJ erred by (1) failing to conclude plaintiff’s right hip impairment 3 and dysfunction was a ‘severe impairment’ at step two; (2) not providing clear and convincing 4 reasons for discounting plaintiff’s testimony regarding her mental dysfunction; (3) discounting 5 portions of Dr. Satish K. Sharma’s medical opinion; and (4) not properly evaluating the 6 administrative medical findings of Dr. Stephen P. Saxby. ECF No. 11 at 10-11. 7 A. Step Two Error is Harmless 8 Plaintiff alleges the ALJ erred at Step Two by determining that plaintiff’s right hip 9 impairment was not severe because the medical evidence did not show that the impairment had 10 lasted for twelve consecutive months. ECF No. 11 at 11. The undersigned finds that the ALJ 11 committed harmless error in this regard. 12 At step two, plaintiff has the burden of providing medical evidence of signs, symptoms, 13 and laboratory findings that show that his or her impairments are severe and are expected to last 14 for a continuous period of twelve months. Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 (9th Cir. 15 2005); see also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii), 416.909, 416.920(a)(4)(ii). “The step- 16 two inquiry is a de minimis screening device to dispose of groundless claims.” Smolen v. Chater, 17 80 F.3d 1273, 1290 (9th Cir. 1996). The purpose is to identify claimants whose medical 18 impairment is so slight that it is unlikely they would be disabled even if age, education, and 19 experience were taken into account. Bowen v. Yuckert, 482 U.S. 137, 153 (1987). At Step 2 of 20 the sequential evaluation, the ALJ determines which of claimant's alleged impairments are 21 “severe” within the meaning of 20 C.F.R. § 404.1520(c). “An impairment is not severe if it is 22 merely ‘a slight abnormality (or combination of slight abnormalities) that has no more than a 23 minimal effect on the ability to do basic work activities.’ Webb v. Barnhart, 433 F.3d 683, 686 24 (9th Cir. 2005) (quoting Social Security Ruling (“SSR”) 96–3p, 1996 SSR LEXIS 10 (1996)). 25 The Step 2 severity determination is “merely a threshold determination of whether the claimant is 26 able to perform his past work. Thus, a finding that a claimant is severe at step two only raises a 27 prima facie case of a disability.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). 28 A finding that an impairment is not “severe” at Step Two is generally harmless if (1) the 1 ALJ finds that other impairments are severe, (2) Step Two is therefore resolved in plaintiff's 2 favor, and (3) the limiting effects of the non-severe impairment are then considered throughout 3 the remainder of the sequential evaluation. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 4 2007) (“The decision reflects that the ALJ considered any limitations posed by the bursitis at Step 5 4. As such, any error that the ALJ made in failing to include the bursitis at Step 2 was 6 harmless.”); see also, Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (“Here, the ALJ did 7 not find that Burch's obesity was a ‘severe’ impairment.... Assuming without deciding that this 8 omission constituted legal error, it could only have prejudiced Burch in step three (listing 9 impairment determination) or step five (RFC) because the other steps, including this one, were 10 resolved in her favor.”). 11 Here, any error at Step Two was harmless. The ALJ found that plaintiff suffered from the 12 following severe impairments: mild right-hand arthritis, bipolar disorder, and polysubstance 13 abuse in reported remission, thus resolving Step Two in plaintiff’s favor. AR 19. She further 14 identified that plaintiff also suffers from a previous right hip hardware placement and status-post 15 right hip arthroplasty, gastroesophageal reflux disease (“GERD”), and hearing loss in the right 16 ear. Id. The ALJ specifically and extensively discussed plaintiff’s right hip impairment in the 17 RFC analysis. For example, the ALJ reviewed the recommendations made by Dr. Sharma and 18 applied limitations to plaintiff’s RFC in acknowledgement of her hip replacement and pain 19 associated with it. AR 26-27. 20 Plaintiff provided evidence to support her contention that her right hip impairment has 21 existed for at least twelve consecutive months and therefore, should have been considered a 22 ‘severe impairment’ in her disability determination. ECF No. 11 at 12. While the undersigned 23 agrees, the Step Two determination is simply a threshold to open the doors to the remainder of the 24 disability analysis. Unless the plaintiff can show that the exclusion of the impairment harmed the 25 remainder of the analysis, such error will be considered harmless. Lewis, 498 F.3d at 911. In this 26 case, despite the ALJ not identifying plaintiff’s right hip impairment as a “severe impairment,” 27 the ALJ considered the impact the impairment would have on plaintiff when determining an 28 appropriate RFC. AR 19-29. She considered the recommendations by doctors, the testimony of 1 plaintiff, and the medical records that pertained to plaintiff’s right hip impairment and the impact 2 it caused to plaintiff’s life. Id. Since Step Two turned in favor of the plaintiff, and the ALJ 3 considered the non-severe impairments throughout the remainder of the evaluation, the 4 undersigned finds any error at Step Two to be harmless error. 5 B. The ALJ Inadequately Discounted Plaintiff’s Mental Impairment Testimony 6 The ALJ inadequately discounted plaintiff’s testimony regarding the impact of her mental 7 dysfunctions. Evaluating the credibility of a plaintiff’s subjective testimony is a two-step 8 process: First the ALJ must “determine whether the claimant has presented objective medical 9 evidence of an underlying impairment which could reasonably be expected to produce the pain or 10 other symptoms alleged.... In this analysis, the claimant is not required to show that her 11 impairment could reasonably be expected to cause the severity of the symptom she has alleged; 12 she need only show that it could reasonably have caused some degree of the symptom.” Garrison 13 v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (internal citations omitted). Objective medical 14 evidence of the pain or fatigue itself is not required. Id. 15 Second, if the ALJ does not find evidence of malingering, the ALJ may only reject the 16 claimant's testimony by offering “specific, clear and convincing reasons for doing 17 so.” Id. (internal citations omitted). While an ALJ’s credibility finding must be properly 18 supported and sufficiently specific to ensure a reviewing court the ALJ did not “arbitrarily 19 discredit” a claimant’s subjective statements, an ALJ is also not “required to believe every 20 allegation” of disability. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). In weighing a 21 claimant's credibility, an ALJ may consider, among other things, inconsistencies either in the 22 claimant's testimony or between his testimony and his conduct, claimant’s daily activities, his 23 work record, and testimony from physicians and third parties concerning the nature, severity, and 24 effect of the symptoms of which claimant complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 25 (9th Cir. 2002). “If the ALJ’s credibility finding is supported by substantial evidence in the 26 record, [the court] may not engage in second-guessing.” Id. at 959. 27 Plaintiff alleged that she is unable to work because she has bipolar disorder, dyslexia, 28 panic attacks, and anxiety. AR 42. At the administrative hearing, plaintiff testified that she gets 1 nervous under pressure and in social environments, and that while her medications help, they do 2 not resolve her symptoms. Id. She reported having difficulty completing tasks, concentrating, 3 understanding, following directions, and getting along with others. AR 257. Plaintiff described 4 herself as feeling down, depressed, hopeless, and having thoughts of suicide for more than half 5 the days of the week. AR 361. 6 The ALJ found that plaintiff’s medical impairments “could reasonably be expected to 7 cause the alleged symptoms; however, the plaintiff’s statements concerning the intensity, 8 persistence, and limiting effects of these symptoms are not consistent with the medical evidence 9 and other evidence in the record.” AR 24. She explained that the evidence shows plaintiff is not 10 as limited as she alleges. Id. However, while the ALJ recited clinical evidence, she did not 11 explain how the cited evidence discounted any specific portion of plaintiff’s symptom testimony. 12 The recital of clinical evidence does not clearly undermine plaintiff’s testimony and the ALJ fails 13 to make the required connections. It is not enough to recite a list of medical notations; “to satisfy 14 the substantial evidence standard, the ALJ must provide specific, clear, and convincing reasons 15 which explain why the medical evidence is inconsistent with the claimant’s subjective symptom 16 testimony.” Ferguson v. O’Malley, 95 F.4th 1194, 1200 (9th Cir. 2024) (emphasis added). The 17 ALJ did not provide the required level of analysis. 18 Further, the ALJ referenced only the objective clinical evidence as a basis for discounting 19 plaintiff’s subjective mental impairments. AR 23-25. A lack of objective support, on its own, is 20 not a sufficient basis for rejecting subjective symptom testimony. Barnhart, 400 F.3d 676, 681 21 (9th Cir. 2005) (“an ALJ may not reject a claimant’s subjective complaints based solely on a lack 22 of medical evidence to fully corroborate the alleged severity of pain.”). While the ALJ referenced 23 a note by plaintiff to her treatment provider requesting a clearance to return to work, the 24 referenced request is simply a note on a visit summary related to ear pain and hearing loss that 25 states: “PT ALSO NEEDS A NOTE STATING SHE IS HEALTHY ENOUGH TO GO BACK 26 TO WORK” and nothing further. AR 560. The reference to this note has no context, and the 27 note itself does not appear relevant to plaintiff’s mental-health symptom testimony. Id. Beyond 28 the reference to the irrelevant note, the ALJ relied only on lack of support in the objective support 1 to discredit plaintiff’s mental impairment testimony, and this is impermissible. See SSR 16-3P 2 (S.S.A. Oct. 25, 2017) (“we will not disregard an individual's statements about the intensity, 3 persistence, and limiting effects of symptoms solely because the objective medical evidence does 4 not substantiate the degree of impairment-related symptoms alleged by the individual.”) For the 5 reasons described above, the court finds that the ALJ erred in discounting plaintiff’s testimony 6 and remand is required. 7 C. The ALJ Properly Evaluated Dr. Sharma’s Medical Opinion 8 Plaintiff asserts that the ALJ did not properly evaluate Dr. Sharma’s medical opinion 9 when creating plaintiff’s RFC. ECF No 11 at 19-21. Specifically, plaintiff contends the ALJ 10 improperly found parts of Dr. Sharma’s medical opinions unpersuasive. ECF No. 11 at 21. The 11 court disagrees. 12 With respect to medical opinions, new regulations apply to claims filed on or after March 13 27, 2017, which change the framework for evaluation of medical opinion evidence. Revisions to 14 Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 15 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. The new regulations provide that the ALJ will no longer 16 “give any specific evidentiary weight ... to any medical opinion(s)” but instead must consider and 17 evaluate the persuasiveness of all medical opinions or prior administrative medical findings from 18 medical sources and evaluate their persuasiveness. Revisions to Rules, 2017 WL 168819, 82 Fed. 19 Reg. 5844, at 5867-68; see 20 C.F.R. § 404.1520c(a) and (b). 20 The factors for evaluating the persuasiveness of a physician opinion include 21 supportability, consistency, relationship with the claimant (including length of the treatment, 22 frequency of examinations, purpose of the treatment, extent of the treatment, and the existence of 23 an examination), specialization, and “other factors that tend to support or contradict 24 a medical opinion or prior administrative medical finding” (including, but not limited to, 25 “evidence showing a medical source has familiarity with the other evidence in the claim or an 26 understanding of our disability program's policies and evidentiary requirements”). 20 C.F.R. § 27 404.1520c(c)(1)-(5). Supportability and consistency are the most important factors, and therefore 28 the ALJ is required to explain how both factors were considered. 20 C.F.R. § 404.1520c(b)(2). 1 Supportability and consistency are defined in the regulations as follows: 2 Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 3 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or 4 prior administrative medical finding(s) will be. 5 Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 6 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 7 finding(s) will be. 8 20 C.F.R. §404.1520c(c)(1)-(2). 9 The ALJ may, but is not required to, explain how the other factors were considered. 20 10 C.F.R. § 404.1520c(b)(2). However, when two or more medical opinions or prior administrative 11 findings “about the same issue are both equally well-supported ... and consistent with the record 12 ... but are not exactly the same,” the ALJ must explain how “the other most persuasive factors in 13 paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. § 404.1520c(b)(3). The Ninth 14 Circuit has confirmed that the new regulatory framework eliminates the “treating physician rule” 15 and displaces the longstanding case law requiring an ALJ to provide “specific and legitimate” or 16 “clear and convincing” reasons for rejecting a treating or examining doctor's opinion. Woods v. 17 Kijakazi, 32 F.4th 785 (9th Cir. 2022). Still, in rejecting any medical opinion as unsupported or 18 inconsistent, an ALJ must provide an explanation supported by substantial evidence. Id. In sum, 19 the ALJ “must ‘articulate ... how persuasive’ [he or she] finds ‘all of the medical opinions’ from 20 each doctor or other source ... and ‘explain how [he or she] considered the supportability and 21 consistency factors’ in reaching these findings.” Id. (citing 20 C.F.R. §§ 404.1520c(b), 22 404.1520(b)(2)). 23 Internal medicine consultant, Dr. Satish Sharma, conducted an examination of plaintiff on 24 October 13, 2021. AR 636-39. Based on plaintiff’s medical record and examination, Dr. Sharma 25 assessed plaintiff’s physical limitations as follows:

26 The claimant’s ability to lift and carry items weighing over 10 pounds frequently and 20 pounds occasionally is limited because of 27 back pain. The claimant’s ability to stand and walk for more than 2 hours in an 8-hour day is limited due to back pain and right hip 28 pain. Bending and stopping is limited to occasionally, sitting is 1 limited to 6 hours per day because of back pain. Limitations in holding, feeling, and fingering objects with the right hand to 2 frequently because of the right carpel tunnel syndrome. No limitations in speech or vision. She has decreased hearing in the 3 right ear. She does not need an assistive device to walk. 4 AR 639. The ALJ found persuasive Dr. Sharma’s recommendation that plaintiff be restricted to 5 light work, except that she could stand and/or walk for two hours in an eight-hour workday, 6 occasionally bend and stoop, and frequently hold, feel, and finger with the right hand. AR 26. 7 Further, she was persuaded by the opinion that plaintiff could carry twenty pounds occasionally 8 and ten pounds frequently. Id. 9 The ALJ was unpersuaded by Dr. Sharma’s recommendation that plaintiff could only 10 stand and/or walk for two hours in an eight-hour workday due to plaintiff’s back and right hip 11 pain. AR 26. The ALJ contends the medical record is inconsistent with such recommendation 12 because on multiple occasions plaintiff has denied back pain and denied a gait problem, and she 13 has been repeatedly observed without an assistive device. AR 26-27. Additionally, the ALJ was 14 unpersuaded by Dr. Sharma’s recommendation that plaintiff could only occasionally stoop and 15 bend based on plaintiff’s alleged back pain. AR 27. The ALJ stated that plaintiff’s medical 16 record does not contain any physical examinations detailing lumbar limitations, rather plaintiff 17 has consistently denied suffering from back pain. Id. 18 ALJ’s are encouraged to make their own disability determinations, but as stated above, 19 ALJ’s are required to address the supportability and consistency the opinion provided when 20 determining the amount of weight to provide the opinion. 20 C.F.R. § 404.1520c(b)(2). Here, the 21 ALJ did not use the words “supportability” or “consistency,” but the opinion substantively 22 addresses both factors and provides clear and convincing reasons for discounting some of Dr. 23 Sharma’s opinion. As to supportability, the ALJ noted that there were no records at all 24 supporting the contention that plaintiff suffers from back pain, undermining the associated 25 limitations suggested by Dr. Sharma. A review of plaintiff’s medical record shows that plaintiff 26 has denied suffering from back pain repeatedly. AR 546, 550, 554, 560, 653, 659, 675, 680, 688. 27 Additionally, while plaintiff reports using a cane, multiple records indicate that she has not been 28 seen with an assistive device, including her examination with Dr. Sharma. AR 360, 364, 367, 1 370, 373, 639. Because the ALJ found that Dr. Sharma’s opinion was not supported, the ALJ 2 provided clear and convincing reasons for discounting parts of her opinion. 3 As to consistency, the ALJ found that Dr. Sharma’s opinion of necessary limitations was 4 at odds with the totality of the medical evidence presented, which did not show that plaintiff was 5 experiencing the type of pain and mobility concerns she alleges. AR 20-27. See Woods, 32 F.4th 6 at 792-93 (“The ALJ found this opinion unpersuasive because it was inconsistent with the overall 7 treating notes and mental status exams in the record”). This statement goes to a lack of 8 consistency. Because the ALJ found Dr. Sharma’s opinion not consistent and not supported, the 9 court does not find error. 10 D. The ALJ Erred in Rejecting Portions of Dr. Saxby’s Medical Opinion 11 Plaintiff asserts that the ALJ did not properly evaluate Dr. Saxby’s medical opinion when 12 creating plaintiff’s RFC. ECF No 11 at 23. Specifically, plaintiff contends the ALJ improperly 13 discredited some of Dr. Saxby’s medical opinions and intertwined Dr. Saxby’s recommendations 14 with other parts of the RFC. ECF No. 11 at 23-26. The court agrees. 15 The appropriate standard is referenced above when evaluating an ALJ’s use of medical 16 opinions. Dr. Saxby, and agency physician, opined that plaintiff was limited to simple, unskilled 17 tasks, that she was moderately limited in her ability to accept instructions from and appropriate 18 respond to criticism from supervisors, and that she had moderate limitation in her ability to adapt 19 to changes and stress. While the ALJ credited portions of Dr. Saxby’s opinion, she discredited 20 other portions, stating in relevant part:

21 I am not persuaded by the opinion of Dr. Saxby that the claimant has moderate limitations in her abilities to adapt to change and 22 stress. Such limitations do not adequately articulate the claimant’s maximum residual functional capacity with respect to such issues. 23 In addition, they are previously addressed within the residual functional capacity through limitations including simple, routine, 24 and repetitive tasks and occasional public contact. 25 AR 28. 26 As discussed above, for an ALJ to reject the opinion of a medical professional, they are 27 required to address the supportability and consistency of the opinion. 20 C.F.R. § 28 404.1520c(b)(2). It is indisputable that the ALJ failed to articulate the supportability and 1 consistency that Dr. Saxby’s medical opinions provide to plaintiff’s overall capabilities. The 2 ALJ’s justification as to why she was not persuaded by the opinion was, “Such limitations do not 3 adequately articulate the claimant’s maximum residual functional capacity with respect to such 4 issues.” AR 28. This conclusory statement does not support or address the consistency or 5 supportability elements to any extent. 6 Further, the ALJ asserts that plaintiff’s moderate limitations in the abilities to adapt to 7 change and stress within the workplace is adequately encompassed within the limitation of 8 “simple, routine, and repetitive tasks and occasional public contact,” thus not requiring further 9 development provided by Dr. Saxby’s opinion. AR 28. Plaintiff argues that her moderate 10 limitation to adapting to change and stress should have been considered independently when 11 creating the RFC, and therefore is not adequately assessed. ECF No. 11 at 25. This court agrees. 12 District courts are divided on the question whether simple/routine tasks with limited public 13 contact account for moderate limitations in one’s ability to adapt and manage stress in the 14 workplace. The split tends to lean in favor of the view that a restriction to simple/routine tasks 15 does not encompass an accommodation that addresses workplace stressors. See Madrigal v. Saul, 16 No. 1:18-CV-01129-SKO, 2020 WL 58289, at *2, 2020 U.S. Dist. LEXIS 1574 (E.D. Cal. Jan. 17 6, 2020) (restriction to simple/routine tasks does not account for mild to moderate limitations in 18 ability to complete a normal workday or workweek and the ability to deal with stress and changes 19 encountered in the workplace); Sahyoun v. Saul, No. 2:18-CV-576-EFB, 2020 WL 1492661, at 20 *4, 2020 U.S. Dist. LEXIS 54098 (E.D. Cal. Mar. 27, 2020) (rejecting argument that RFC 21 determination that plaintiff could sustain work involving simple, repetitive tasks adequately 22 captured moderate limitations in maintaining regular attendance, completing a normal workday or 23 work week, and handling normal work-related stress). 24 The undersigned concurs. While moderate limitations are not per se disabling, see Wiles 25 v. Berryhill, No. 2:16–cv–09558–GJS, 2017 WL 5186333, at *3, 2017 U.S. Dist. LEXIS 185486 26 (C.D. Cal. Nov. 8, 2017), they may translate into concrete work restrictions which, when 27 considered in connection with plaintiff's other restrictions, may render her disabled. See, e.g., 28 Timothy B. v. Saul, No. 20-cv-03411-SK, 2022 WL 181261, at *4, 2022 U.S. Dist. LEXIS 10737 1 (N.D. Cal. Jan. 20, 2022). Accordingly, the moderate limitation that the ALJ failed to address or 2 account for was not inconsequential to the ultimate disability determination. The ALJ erred. 3 E. Remand for Further Consideration is Necessary 4 As discussed above, the ALJ erred by rejecting plaintiff’s testimony regarding her mental 5 dysfunctions and for not adequately considering Dr. Saxby’s medical opinion when creating 6 plaintiff’s RFC. The undersigned agrees with plaintiff that the ALJ’s errors are harmful and 7 remand for further proceedings by the Commissioner is necessary. ECF No. 11 at 27. An error is 8 harmful when it has some consequence on the ultimate non-disability determination. Stout v. 9 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). The ALJ’s errors in this matter 10 were harmful; correcting the errors may very well result in a more restrictive residual functional 11 capacity assessment, which may in turn alter the finding of non-disability. 12 It is for the ALJ to determine in the first instance whether plaintiff has severe impairments 13 and, ultimately, whether he is disabled under the Act. See Marsh v. Colvin, 792 F.3d 1170, 1173 14 (9th Cir. 2015) (“the decision on disability rests with the ALJ and the Commissioner of the Social 15 Security Administration in the first instance, not with a district court”). “Remand for further 16 administrative proceedings is appropriate if enhancement of the record would be useful.” 17 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Further development of the record 18 consistent with this order is necessary, and remand for further proceedings is the appropriate 19 remedy. 20 VII. CONCLUSION 21 For the reasons set forth above, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s motion for summary judgment (ECF No. 11), is GRANTED; 23 2. The Commissioner’s cross-motion for summary judgment (ECF No. 15), is DENIED; 24 3. The matter is REMANDED to the Commissioner for further proceedings consistent 25 with this order; and 26 //// 27 //// 28 //// ] 4. The Clerk of the Court shall enter judgment for plaintiff, and close this case. 2 SO ORDERED. 3 || DATED: May 1, 2024 ~ 4 Mten—lhinee ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16