(SS) Sanchez de Mendoza v. Commissioner of Social Security

Opinion

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MARIA HILDA SANCHEZ DE MENDOZA, Case No.: 1:22-cv-01190 JLT CDB

Plaintiff, ORDER DECLINING TO ADOPT THE FINDINGS AND RECOMMENDATIONS v. OF THE MAGISTRATE JUDGE, GRANTING PLAINTIFF’S MOTION FOR SUMMARY MARTIN O’MALLEY, JUDGMENT OR REMAND, AND Commissioner of Social Security1, REMANDING THE ACTION FOR FURTHER PROCEEDINGS PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g) Defendant. ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF PLAINTIFF MARIA HILDA SANCHEZ DE MENDOZA AND AGAINST DEFENDANT MARTIN O’MALLEY, COMMISSIONER OF SOCIAL SECURITY (Docs. 20, 23, 24)

Maria Hilda Sanchez de Mendoza seeks judicial review of an administrative decision of the Commissioner of Social Security denying her application for a period of disability and disability insurance benefits under Title II of the Social Security Act. (Docs. 1, 20.) Plaintiff contends the administrative law judge’s mental residual functional capacity determination was not supported by substantial evidence and the ALJ erred in rejecting a treating psychiatrist’s RFC limitations.2 (Doc.

1 Martin O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes Martin O’Malley as the defendant in this suit. 2 Plaintiff did not object to the magistrate judge’s determination that the ALJ’s rejection of Dr. Pusateri’s 20 at 7.) The Commissioner opposes remand, asserting substantial evidence supports the decision of

the ALJ and the decision should be affirmed. (See generally Doc. 23.) For the reasons set forth

below, the matter is remanded for further administrative proceedings.

I. Relevant Background and Findings of the ALJ

Following an unfavorable decision on Plaintiff’s application for disability benefits,

Plaintiff filed a subsequent application, which was denied initially and upon reconsideration.

After conducting a telephonic hearing, the ALJ issued a decision on Plaintiff’s second

application, finding that Plaintiff was not disabled. (Doc. 13-1 at 24-38.) Initially, pursuant to

Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), the ALJ determined that Plaintiff rebutted the

presumption of continuing non-disability and presen ted new and material evidence warranting additional review of Plaintiff’s RFC “without adoption of the previous hearing decision’s [RFC].” (Id. at 30.) The ALJ then conducted the five-step disability evaluation under 20 C.F.R. § 404.1520(a) and found that through the date last insured, Plaintiff had “severe” impairments, including diagnoses and treatment for “major depressive disorder and anxiety disorder.” (Doc. 13-1 at 30- 32.) Ultimately, however, the ALJ determined that Plaintiff retained the RFC to perform a full range of work with the following limitations: “claimant must avoid all exposure to unprotected heights and must avoid concentrated exposure to hazardous machinery. She cannot handle small objects or read small or fine print. The claimant is limited to simple, routine tasks and is limited to no interaction with the public.” (Id. at 32.) Plaintiff’s mental RFC remained unchanged from the prior unfavorable decision.3 In making this determination, the ALJ found the opinion of State Agency psychological consultant Nadine J. Genece, Psy.D. persuasive. (See id. at 35.) II. Findings and Recommendations of the Magistrate Judge Plaintiff asserts that the ALJ’s mental RFC is not supported by substantial evidence because the ALJ found Dr. Genece’s medical opinion persuasive without adequately addressing the

3 In denying Plaintiff’s first application for disability benefits, the prior ALJ determined Plaintiff had full- range RFC with the following limitations: “she can perform simple, routine tasks. She cannot have public contact. She cannot work at unprotected heights or around heavy machinery with fast-moving parts. She cannot work in areas of uneven terrain. She cannot perform work requiring handling of small objects or opinion’s “supportability” and “consistency” under 20 C.F.R. § 404.1520c. (Doc. 20 at 20.) The

magistrate judge found that “[c]ontrary to Plaintiff’s contentions, Dr. Genece’s opinion

demonstrates she considered Plaintiff’s medical records and acknowledged Plaintiff’s affect as

mood congruent, flat, and tearful, presenting anxious appearance and experiencing severe

depression and anxiety that had worsened over time, and symptoms of paranoia and hallucinations.”

(Doc. 24 at 13, citing Doc. 13-1 at 95-98.) The magistrate judge also found that the opinion

“addresses Plaintiff’s thought content and notes it had worsened over time,” citing to the objective

findings that in April 2019, Plaintiff’s thought content was “unremarkable” and in August 2019, it

was “w/ paranoia and Hallucinations.” (Id. at 14, citing Doc. 13-1 at 96.)

Despite Plaintiff’s citations to several unad dressed records she contends support a finding of worsening impairments and increased symptoms (see Doc. 20 at 25-26), the magistrate judge opined that the record demonstrates Dr. Genece considered Plaintiff’s use of medication as well as conditions and symptoms of paranoia, increased anxiety, panic attacks, and severe depression “that were found throughout Plaintiff’s treatment records and detailed in those records in September 2018, and April, July, and August 2019.” (Doc. 24 at 14.) Finally, the magistrate judge rejected Plaintiff’s argument that the ALJ erred in finding new and material changes justifying the reopening of an application and nevertheless adopted Dr. Genece’s opinion, which found no significant new and material changes. (See Doc. 24 at 14-16.) The magistrate judge opined that the ALJ considered Dr. Genece’s opinion along with Plaintiff’s new evidence of paranoia, hallucinations, and limitations and accounted for these changed circumstances in determining Plaintiff’s new RFC. (Id. at 16.) Thus, the magistrate judge concluded that the ALJ’s decision was supported by substantial evidence and recommended that Plaintiff’s motion for summary judgment be denied. (See id. at 16-17.) III. Objections Plaintiff filed objections to the Findings and Recommendations, asserting that the Court should reject the magistrate judge’s finding that the ALJ’s mental RFC was supported by substantial evidence. (Doc. 25 at 2.) Plaintiff maintains that “despite the Magistrate Judge’s both ‘Supportability’ with Dr. Genece’s own findings and ‘Consistency’ with the record as a whole

with any specificity, rendering the MRFC not based on substantial evidence.” (Id. at 5, emphasis

omitted.) Additionally, Plaintiff contends that the magistrate judge “cannot remedy, post-hoc, the

ALJ’s harmful error here and ‘analyze’ the 14 page exhibit of ‘3A’ to attempt to intuit which

aspects of the ‘examination findings from the unadjudicated period’ (AR 30) which ranges from

September 7, 2018 through June 30, 2019 upon which Dr. Genece supposedly based her MRFC

determination.” (Id. at 6.)

IV. Discussion

A district judge may “accept, reject or modify, in whole or in part, the findings and

recommendations...” 28 U.S.C. § 636(b)(1). If a pa rty files objections, “the court shall make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made.” Id. A de novo review requires the Court to “consider[] the matter anew, as if no decision had been rendered.” Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). A. Post-hoc analysis As an initial matter, the Court notes that the magistrate judge reviewed the administrative record to determine whether the ALJ’s decision was supported by substantial evidence in light of the ALJ’s alleged failure to adequately consider Dr. Genece’s opinion. (See Doc. 24 at 11-14.) Upon this review, the magistrate judge determined that Dr. Genece’s opinion indicated she considered Plaintiff’s treatment records and acknowledged her worsening conditions and symptoms. (See id. at 13-14.) In addition, the magistrate judge opined that Plaintiff was asking the Court to “reinterpret and/or reweigh Dr. Genece’s opinion,” and noted that “it is not our prerogative on federal review to assume the ALJ’s role and reweigh the evidence.” (Id. at 14, citing Wilfred- Pickett v. Berryhill, 719 F. App’x 576, 578 (9th Cir. 2017); Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (“We may not reweigh the evidence or substitute our judgment for that of the ALJ.”).) Importantly, the ALJ did not provide the analysis offered by the magistrate judge. Rather, examination notes from the unadjudicated period” and that “[t]he record as a whole is consistent

with the limitations indicated.” (Doc. 13-1 at 35.) Accordingly, the Court may not now rely on the

magistrate judge’s findings to support the adequacy of the ALJ’s decision. See Burrell v. Colvin,

775 F.3d 1113, 1138 (9th Cir. 2014) (reiterating the court is “constrained to review the reasons the

ALJ asserts” [citation omitted]); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (finding

error where the district court affirmed the ALJ’s decision “based on evidence that the ALJ did not

discuss”). In any event, the dispositive question is whether the ALJ properly considered the

supportability and consistency of Dr. Genece’s opinion, which the Findings and Recommendations

did not directly address.

B. Evaluation of medical opinions When evaluating medical opinions, the regulations4 direct ALJs to articulate how each opinion was considered and how persuasive each opinion is. Leslie W. v. Comm’r of Soc. Sec., 2021 WL 1518870, at *5 (D. Or. Apr. 16, 2021), aff’d sub nom. Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520c(a), (b)(1)). ALJs determine how persuasive a medical opinion is according to the following factors: supportability, consistency, relationship with the claimant, specialization, and other factors showing the medical source’s “familiarity with … other evidence in the record or an understanding of [the] disability program’s policies and evidentiary requirements.” 20 C.F.R. § 404.1520c(c)(1)-(5). An ALJ is only required to discuss supportability and consistency, which are the most important factors “when evaluating the persuasiveness of medical opinions.” Woods, 32 F.4th at 791 (quoting 20 C.F.R. § 404.1520c(a)); see also 20 C.F.R. § 404.1520c(b)(2) (“we will explain how we considered the supportability and consistency factors for a medical source’s medical opinions or prior administrative medical findings in your determination or decision. We may, but are not required to, explain how we considered the [remaining] factors in paragraphs (c)(3) through (c)(5) of this section…”). The supportability inquiry is an assessment of “the extent to which a medical source

4 For applications filed on or after March 27, 2017, the Commissioner revised the rules for the 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 supports the medical opinion by explaining the relevant objective medical evidence.” Woods, 32

F.4th at 791-792 (internal quotation marks omitted). The regulations provide: “The more relevant

the objective medical evidence and supporting explanations presented by a medical source are to

support his or her medical opinion(s) or prior administrative medical finding(s), the more

persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §

404.1520c(c)(1).

Consistency compares an opinion with other evidence to determine its persuasiveness. See

Woods, 32 F.4th at 792. With the “consistency” factor, the regulations explain: “The more

consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from

other medical sources and nonmedical sources in t he claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2). Thus, “to determine the persuasiveness of a medical opinion the court must evaluate whether the ALJ properly considered the factors as set forth in the regulations.” Leslie, 2021 WL 1518870, at *5. On October 21, 2019, after a review of the medical record, Dr. Genece opined that Plaintiff could maintain concentration, persistence, and pace for simple tasks, and that she could have limited contact with the public. (Doc. 13-1 at 101-02.) Dr. Genece provided the following explanation: Depression/anxiety alleged with AOD 09/7/18. A prior 09/6/18 ALJ concluded that clmt would be able to perform simple tasks with no public contact on the basis of GAD. Current evidence shows clmt is being treated w/ Sertraline and is in counseling for depression/anxiety. Mild to mod sxs evident on MSEs. ADLS are not significantly restricted to psych issues. Evidence on file supports no material change since ALJ which is adopted. Clmt is limited to simple tasks w/ no contact w/ the public. (Id. at 102.) The ALJ found the opinion of Dr. Genece “persuasive,” stating: The undersigned finds that the State Agency psychological findings offered by Nadine J. Genece, Psy.D. are persuasive (Exhibit B3A). Dr. Genece found that the claimant is limited to simple tasks with no contact with the public. Dr. Genece adopted the findings from the prior hearing decision and supported the findings with examination notes from the unadjudicated period. The record as a whole is consistent with the limitations indicated. (Id. at 35, citing Exhibit B3A (Doc. 13-1 at 91-104).)

Plaintiff contends that the ALJ’s discussion of Dr. Genece’s opinion falls short of the

requirements under 20 C.F.R. § 404.1520c. The Court agrees. The ALJ acknowledges that Dr.

Genece “supported the findings with examination notes from the unadjudicated period.” (Doc. 13-1

at 35.) However, even assuming this passes muster under the statutory requirements for

supportability, the ALJ clearly fails to address the consistency of Dr. Genece’s decision with other

evidence, other than offering the conclusion that “[t]he record as a whole is consistent with the

limitations indicated.” (Id.) The Court declines to speculate as to what findings support the ALJ’s

conclusion that the opinion of Dr. Genece was “consistent” with those of other medical sources.

Rather, it is the ALJ’s obligation to compare a me dical opinion with other evidence in the record and “provid[e] an explanation supported by substantial evidence.” Woods, 32 F.4th at 792. Consequently, the Court is unable to find the ALJ properly discussed the consistency factor. See Woods, 32 F.4th at 792 (the factor addresses “the extent to which a medical opinion is consistent with the evidence from other medical and nonmedical sources”) (internal quotation marks omitted, emphasis added). C. Remand for further proceedings The decision whether to remand a matter for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g) or to order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an agency determination, the proper course is to remand to the agency for additional investigation or explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 12, 16 (2002)). Plaintiff requests the matter be remanded for the payment of benefits, or in the alternative, for further proceedings. (See Doc. 25 at 16.) The Court finds remand is appropriate in this action for further consideration of the medical opinion of Dr. Genece, including clarification by the ALJ regarding the opinion’s persuasiveness of the opinion. See 20 C.F.R. § 404.1520c.5 /// NV. Conclusion and Order Pursuant to 28 U.S.C. § 636 (b)(1)(c), this Court conducted a de novo review of the case. Having carefully reviewed the entire matter, the Court finds the ALJ failed to apply the proper legal standards and declines to affirm the administrative decision. Thus, the Court ORDERS: 1. The Court declines to adopt the Findings and Recommendations (Doc. 24). 2. Plaintiff's motion for summary judgment or remand (Doc. 20) is GRANTED. 3. Defendant’s request to affirm the administrative decision (Doc. 23) is DENIED. 4. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this decision. 5. The Clerk of Court is directed to enter judgment in favor of Plaintiff Maria Hilda Sanchez de Mendoza and against Defendant Martin O’Malley, Commissioner of Social Security. | Dated: _ April 19, 2024 Cerin | Tower TED STATES DISTRICT JUDGE