1 2 3 4 5 6 7 10 11 JOANNA PACHECO, ) Case No.: 1:22-cv-0190 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. 15, 20, 22) 17 ) 18 Joanna Pacheco seeks judicial review of a final decision of the Commissioner of Social 19 Security denying her applications for a period of disability, disability insurance benefits, and 20 supplemental security income. (Doc. 1, 15.) Plaintiff asserts that “[t]he ALJ erred by rejecting 21 the opinion of Plaintiff’s treating physician, Dr. Royter without proper consideration of the 22 supportability and consistency of the opinion with the record.” (Doc. 15 at 7, emphasis omitted.) 23 I. Findings and Recommendations of the Magistrate Judge 24 Plaintiff applied for benefits after March 27, 2017, so her applications are governed by the 25 new regulations to evaluate medical opinions. 20 C.F.R.§§ 404.1520c, 416.920c. The magistrate 26 judge found the ALJ properly determined considered the consistency factor, because the ALJ 27 identified inconsistencies with Plaintiff’s daily activities, treatment notes, and objective evidence 28 of record. (Doc. 22 at 9-10.) In addition, the magistrate judge found the ALJ did not err in 1 finding the physician’s opinion lacked supportability, because the Court was “unable to discern 2 any arguable explanation of the bases for the severe limitations assessed by Dr. Royter in the ‘pre- 3 printed and checklist’ opinion.” (Id. at 11.) Therefore, the magistrate judge determined that “the 4 ALJ’s finding that Dr. Royter’s opinions were not persuasive was supported by substantial 5 evidence after proper consideration of the supportability and consistency factors.” (Id.) The 6 magistrate judge recommended that Plaintiff’s motion for summary judgment be denied, the 7 Commissioner’s cross-motion be granted, and the administrative decision be affirmed. (Id. at 11- 8 12.) 9 II. Objections 10 Plaintiff asserts that “the ALJ failed to support the determination by substantial evidence.” 11 (Doc. 23 at 2.) Plaintiff contends the magistrate judge erred in accepting the ALJ’s determination 12 that Plaintiff’s daily activities were inconsistent with Dr. Royter’s opinion. (Id.) Plaintiff also 13 asserts the magistrate judge erred in finding the medical opinion was inconsistent with the record, 14 arguing the magistrate judge “erroneously analyzes the objective findings and sets forth a 15 rationale for discounting the opinion where the ALJ did not, and this post-hoc rationalization for 16 the ALJ’s decision should be rejected.” (Id. at 3-4.) According to Plaintiff, the magistrate judge 17 “cherry-picked from the ALJ’s general summary of Plaintiff’s medical history and set forth a 18 rationale as to which portions of this summary of evidence could be construed as consistent with 19 the ALJ’s conclusion.” (Id., citing Doc. 22 at 9-10.) Therefore, Plaintiff contends the 20 recommendations of the magistrate judge should not be adopted, and the matter should be 21 remanded for further proceedings. (Id. at 5.) 22 The Commissioner filed a response to the objections, maintaining that “the ALJ correctly 23 discounted the limitations opined by Dr. Royter.” (Doc. 24 at 1-2.) The Commissioner observes 24 the Ninth Circuit determined “an ALJ may discount a doctor’s findings based on a single factor of 25 either supportability or consistency.” (Id. at 2-3, citing Woods v. Kijakazi, 32 F.4th 785, 793 (9th 26 Cir. 2022). The Commissioner also notes Plaintiff objected only to the findings related to the 27 consistency factor, and did not “not meaningfully challenge or address Judge Barch-Kuchta’s 28 valid evaluation of the ALJ’s additional reason for discounting Dr. Royter’s opinion, which was 1 based on the supportability factor.” (Id. at 2, emphasis omitted.) Because the supportability 2 factor alone can support the ALJ’s determination, the Commissioner contends the magistrate 3 judge’s findings and recommendations should be adopted. (Id. at 2-3.) 4 III. Discussion and Analysis 5 A district judge may “accept, reject or modify, in whole or in part, the findings and 6 recommendations...” 28 U.S.C. § 636(b)(1). If objections are filed, “the court shall make a de 7 novo determination of those portions of the report or specified proposed finding or 8 recommendations to which objection is made.” Id. A de novo review requires the Court to 9 “consider[] the matter anew, as if no decision had been rendered.” Dawson v. Marshall, 561 F.3d 10 930, 932 (9th Cir. 2009). 11 A. Evaluating Medical Opinions1 12 The regulations direct ALJs to determine how persuasive a medical opinion is according 13 to the following factors: supportability, consistency, relationship with the claimant, specialization, 14 and other factors showing the medical source’s “familiarity with … other evidence in the record 15 or an understanding of [the] disability program’s policies and evidentiary requirements.” 20 16 C.F.R. §§ 404.1520c(c)(1)-(5), §§ 416.920c(c)(1)-(5). An ALJ is only required to discuss 17 supportability and consistency, which are the two most important factors “when evaluating the 18 persuasiveness of medical opinions.” Woods, 32 F.4th at 791 (quoting 20 C.F.R. § 19 404.1520c(a)); see also 20 C.F.R. § 416.920c(b)(2) (“we will explain how we considered the 20 supportability and consistency factors for a medical source’s medical opinions or prior 21 administrative medical findings in your determination or decision. We may, but are not required 22 to, explain how we considered the [remaining] factors in paragraphs (c)(3) through (c)(5) of this 23 section…”). 24 The supportability inquiry is an assessment of “the extent to which a medical source 25 supports the medical opinion by explaining the relevant objective medical evidence.” Woods, 32 26 1 As noted above, for applications filed on or after March 27, 2017, the Commissioner revised the rules for the 27 evaluation of medical 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 28 June 20, 2019 (Doc. 12-1 at 19), Plaintiff’s claim is subject to the revised rules. 1 F.4th at 791-792 (internal quotation marks omitted). The regulations provide:
2 The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her 3 medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical 4 finding(s) will be. 5 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). On the other hand, consistency compares an 6 opinion with other evidence to determine its persuasiveness. See Woods, 32 F.4th at 792. With 7 the “consistency” factor, the regulations explain:
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1 2 3 4 5 6 7 10 11 JOANNA PACHECO, ) Case No.: 1:22-cv-0190 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. 15, 20, 22) 17 ) 18 Joanna Pacheco seeks judicial review of a final decision of the Commissioner of Social 19 Security denying her applications for a period of disability, disability insurance benefits, and 20 supplemental security income. (Doc. 1, 15.) Plaintiff asserts that “[t]he ALJ erred by rejecting 21 the opinion of Plaintiff’s treating physician, Dr. Royter without proper consideration of the 22 supportability and consistency of the opinion with the record.” (Doc. 15 at 7, emphasis omitted.) 23 I. Findings and Recommendations of the Magistrate Judge 24 Plaintiff applied for benefits after March 27, 2017, so her applications are governed by the 25 new regulations to evaluate medical opinions. 20 C.F.R.§§ 404.1520c, 416.920c. The magistrate 26 judge found the ALJ properly determined considered the consistency factor, because the ALJ 27 identified inconsistencies with Plaintiff’s daily activities, treatment notes, and objective evidence 28 of record. (Doc. 22 at 9-10.) In addition, the magistrate judge found the ALJ did not err in 1 finding the physician’s opinion lacked supportability, because the Court was “unable to discern 2 any arguable explanation of the bases for the severe limitations assessed by Dr. Royter in the ‘pre- 3 printed and checklist’ opinion.” (Id. at 11.) Therefore, the magistrate judge determined that “the 4 ALJ’s finding that Dr. Royter’s opinions were not persuasive was supported by substantial 5 evidence after proper consideration of the supportability and consistency factors.” (Id.) The 6 magistrate judge recommended that Plaintiff’s motion for summary judgment be denied, the 7 Commissioner’s cross-motion be granted, and the administrative decision be affirmed. (Id. at 11- 8 12.) 9 II. Objections 10 Plaintiff asserts that “the ALJ failed to support the determination by substantial evidence.” 11 (Doc. 23 at 2.) Plaintiff contends the magistrate judge erred in accepting the ALJ’s determination 12 that Plaintiff’s daily activities were inconsistent with Dr. Royter’s opinion. (Id.) Plaintiff also 13 asserts the magistrate judge erred in finding the medical opinion was inconsistent with the record, 14 arguing the magistrate judge “erroneously analyzes the objective findings and sets forth a 15 rationale for discounting the opinion where the ALJ did not, and this post-hoc rationalization for 16 the ALJ’s decision should be rejected.” (Id. at 3-4.) According to Plaintiff, the magistrate judge 17 “cherry-picked from the ALJ’s general summary of Plaintiff’s medical history and set forth a 18 rationale as to which portions of this summary of evidence could be construed as consistent with 19 the ALJ’s conclusion.” (Id., citing Doc. 22 at 9-10.) Therefore, Plaintiff contends the 20 recommendations of the magistrate judge should not be adopted, and the matter should be 21 remanded for further proceedings. (Id. at 5.) 22 The Commissioner filed a response to the objections, maintaining that “the ALJ correctly 23 discounted the limitations opined by Dr. Royter.” (Doc. 24 at 1-2.) The Commissioner observes 24 the Ninth Circuit determined “an ALJ may discount a doctor’s findings based on a single factor of 25 either supportability or consistency.” (Id. at 2-3, citing Woods v. Kijakazi, 32 F.4th 785, 793 (9th 26 Cir. 2022). The Commissioner also notes Plaintiff objected only to the findings related to the 27 consistency factor, and did not “not meaningfully challenge or address Judge Barch-Kuchta’s 28 valid evaluation of the ALJ’s additional reason for discounting Dr. Royter’s opinion, which was 1 based on the supportability factor.” (Id. at 2, emphasis omitted.) Because the supportability 2 factor alone can support the ALJ’s determination, the Commissioner contends the magistrate 3 judge’s findings and recommendations should be adopted. (Id. at 2-3.) 4 III. Discussion and Analysis 5 A district judge may “accept, reject or modify, in whole or in part, the findings and 6 recommendations...” 28 U.S.C. § 636(b)(1). If objections are filed, “the court shall make a de 7 novo determination of those portions of the report or specified proposed finding or 8 recommendations to which objection is made.” Id. A de novo review requires the Court to 9 “consider[] the matter anew, as if no decision had been rendered.” Dawson v. Marshall, 561 F.3d 10 930, 932 (9th Cir. 2009). 11 A. Evaluating Medical Opinions1 12 The regulations direct ALJs to determine how persuasive a medical opinion is according 13 to the following factors: supportability, consistency, relationship with the claimant, specialization, 14 and other factors showing the medical source’s “familiarity with … other evidence in the record 15 or an understanding of [the] disability program’s policies and evidentiary requirements.” 20 16 C.F.R. §§ 404.1520c(c)(1)-(5), §§ 416.920c(c)(1)-(5). An ALJ is only required to discuss 17 supportability and consistency, which are the two most important factors “when evaluating the 18 persuasiveness of medical opinions.” Woods, 32 F.4th at 791 (quoting 20 C.F.R. § 19 404.1520c(a)); see also 20 C.F.R. § 416.920c(b)(2) (“we will explain how we considered the 20 supportability and consistency factors for a medical source’s medical opinions or prior 21 administrative medical findings in your determination or decision. We may, but are not required 22 to, explain how we considered the [remaining] factors in paragraphs (c)(3) through (c)(5) of this 23 section…”). 24 The supportability inquiry is an assessment of “the extent to which a medical source 25 supports the medical opinion by explaining the relevant objective medical evidence.” Woods, 32 26 1 As noted above, for applications filed on or after March 27, 2017, the Commissioner revised the rules for the 27 evaluation of medical 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 28 June 20, 2019 (Doc. 12-1 at 19), Plaintiff’s claim is subject to the revised rules. 1 F.4th at 791-792 (internal quotation marks omitted). The regulations provide:
2 The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her 3 medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical 4 finding(s) will be. 5 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). On the other hand, consistency compares an 6 opinion with other evidence to determine its persuasiveness. See Woods, 32 F.4th at 792. With 7 the “consistency” factor, the regulations explain:
8 The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources 9 and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 10 11 20 C.F.R. §§§ 404.1520c(c)(2), 416.920c(c)(2). The Ninth Circuit observed that an ALJ must 12 explain how both the supportability and consistency factors were considered, and “[e]ven under 13 the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as 14 unsupported or inconsistent without providing an explanation supported by substantial evidence.” 15 Woods, 32 F.4th at 792. 16 B. Opinion from Dr. Royter 17 The ALJ observed that Dr. Royter opined Plaintiff could “do no walking or standing, can 18 sit 2 to 4 hours, lift and carry 10 to 15 pounds, and never balance.” (Doc. 12-1 at 26.) The ALJ 19 determined these limitations “inconsistent with the overall record.” (Id.) The ALJ explained:
20 [A]dditional evidence has been admitted to the record since these assessments were made, so the entire record was not considered. New 21 evidence, including her testimony, suggest much less restrictions than these assessments indicate. The side effects of her medications is 22 inconsistent with the record. Furthermore, the claimant’s daily living activities show that she can do more than this assessment. Moreover, 23 no other medical opinion of record supports these opinions. 24 (Id.) The ALJ also found the limitations identified by Dr. Royter were “not supported by the 25 claimant’s treatment notes or the objective evidence of record.” (Id.) The ALJ found “little 26 explanation … to support the reason for the opinions.” (Id.) The ALJ observed the exhibits were 27 “pre-printed forms and checklists” that appeared “based on the claimant’s reported subjective 28 symptoms.” (Id.) 1 1. Supportability 2 As an initial matter, Plaintiff does not object to the supportability findings made by the 3 magistrate judge. (See generally Doc. 23.) Under the new regulations, the supportability inquiry 4 is “geared toward assessing how well a medical source supported and explained” his or her 5 opinion. Cuevas v. Comm’r of Soc. Sec., 2021 WL 363682 at *10 (S.D.N.Y. Jan. 29, 2021). As 6 the magistrate judge determined, “the Court is unable to discern any arguable explanation of the 7 bases for the severe limitations assessed by Dr. Royter in the ‘pre-printed and checklist’ 8 opinion.” (Doc. 22 at 11.) The lack of explanation by Dr. Royter supports the conclusion that 9 the opinion is not persuasive, and the magistrate judge’s findings related to the supportability 10 factor are adopted. 11 2. Consistency 12 Plaintiff’s objections related to the consistency factor generally restate the arguments 13 raised in her opening brief, including that the ALJ failed to “show” her daily activities are 14 inconsistent with Dr. Royter’s opinion, and the ALJ failed to either identify or explain how 15 specific objective evidence was inconsistent with Dr. Royter’s opinion. (Doc. 23 at 2-4.) These 16 arguments were thoroughly considered in the Findings and Recommendations, and the magistrate 17 judge properly concluded that the ALJ’s finding was supported by substantial evidence. 18 As the magistrate judge determined, “[i]t was reasonable for the ALJ to discount Dr. 19 Royter’s opinion because Plaintiff’s daily activities ‘suggest much less restrictions’ than the 20 assessed limitations, including standing and walking for 0-2 hours and sitting for only 2-4 hours 21 in an 8-hour workday.” (Doc. 22 at 9.) Although Plaintiff contends the ALJ “disregarded her 22 clarification that activities are interrupted by seizure activity” (Doc 23 at 3), the ALJ found this 23 testimony was not supported by the medical record, which “indicates her seizures are controlled 24 with medication.” (Doc. 12-2 at 25.) Significantly, Plaintiff did not challenge the ALJ’s rejection 25 of her hearing testimony. Thus, her testimony concerning seizure activities does not undermine 26 the ALJ’s findings. 27 The magistrate judge also found the ALJ did not err in finding the opinion of Dr. Royter 28 was inconsistent with other medical opinions of record. (Doc. 22 at 10.) Although Plaintiff 1 contends the magistrate judge provided post-hoc rationalization, the magistrate judge clearly cited 2 evidence discussed by the ALJ. (See id. at 10.) The magistrate judge was constrained to the 3 reasons identified by the ALJ, as well as the evidence cited, including both favorable and 4 unfavorable evidence in the medical record. As the magistrate judge observed, “[w]hile not 5 addressed by Plaintiff, the ALJ also considered evidence that could be considered favorable to 6 Plaintiff, including reports of seizures and ‘progression, regression, and resolution of tubers.’” 7 (Id., quoting AR 22 [Doc. 12-1 at 25].) 8 Given the identified inconsistencies between Dr. Royter’s opinion and the record— 9 including Plaintiff’s daily activities and the medical record— the ALJ properly performed the 10 consistency analysis in explaining why the opinion was not persuasive. See 20 C.F.R. §§§ 11 404.1520c(c)(2), 416.920c(c)(2). 12 IV. Conclusion and Order 13 Pursuant to 28 U.S.C. § 636 (b)(1)(c), this Court conducted a de novo review of the case. 14 Having carefully reviewed the entire matter, including Plaintiff’s objections, the Court finds the 15 Findings and Recommendations are supported by the record and proper analysis. Because ALJ 16 applied the proper legal standards, and the decision was supported by substantial evidence in the 17 record, the administrative decision is affirmed. See Sanchez v. Sec’y of Health & Human Serv., 18 812 F.2d 509, 510 (9th Cir. 1987); see also Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 19 1992) (“The trier of fact and not the reviewing court must resolve conflicts in the evidence, and if 20 the evidence can support either outcome, the court may not substitute its judgment for that of the 21 ALJ”). Based upon the foregoing, the Court ORDERS: 22 1. The Findings and Recommendations issued on July 20, 2023 (Doc. 22) are 23 ADOPTED in full. 24 2. Plaintiff’s Motion for Summary Judgment (Doc. 15) is DENIED. 25 3. Defendant’s Cross-Motion for Summary Judgment (Doc. 20) is GRANTED and 26 the decision of the Commissioner of Social Security is AFFIRMED. 27 /// 28 /// 1 4. The Clerk of Court is directed to terminate any pending motions and deadlines; 2 enter judgment in favor of defendant Kilolo Kijakazi, Acting Commissioner of 3 Social Security, and against Plaintiff Joanna Pacheco; and to close this case. 4 6 | Dated: _ August 20, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28